Merchant Terms of Use

Last revised: July 07, 2021

These Merchant Terms of Use (“Merchant Terms”) apply to your access and use of all websites, applications and other online products and services provided by Prizeout Corp., a Delaware corporation (“Prizeout”, “we”, or “our”), and constitute a legal and binding agreement by and between you and your affiliates (“Merchant” or “you”) and Prizeout (each a “Party” and collectively, the “Parties”). By accessing and using the Service (defined below), you are agreeing to these Merchant Terms. As used herein, “you” shall also refer to Merchant Users (as defined below) as applicable.

WHEREAS, Prizeout offers certain software products, APIs and services through its proprietary online platform (the “Service”) that Merchant desires to access and use in order to create campaigns (“Campaigns”) to advertise gift cards, vouchers, and/or other mechanisms to provide stored value (e.g., account credits etc.) delivered electronically with unique, digital codes (“Gift Cards”) for its product or services to Prizeout’s partners (“Partners”) and/or their end users (“End Users”) accessing and using the Service in order to purchase or otherwise acquire such Gift Cards; and

WHEREAS, Merchant desires to obtain from Prizeout, the right for itself, its authorized employees and consultants (collectively, “Merchant Users”, and together with End Users, “Users”) to access and use the Service, including the merchant portal (the “Merchant Portal”), the processing portal (the “Processing Portal”) and the Processing Service (as defined herein), as applicable.

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and upon the terms and conditions hereof, Prizeout and Merchant agree as follows:

1. Access to the Service.

   1. Grant of Rights. Prizeout grants to Merchant and Merchant Users the non-exclusive, non-transferable (except as may be permitted herein) right to access and use the Service in accordance with these Merchant Terms. Prizeout grants only the licenses and rights specified in these Merchant Terms. No other licenses or rights (including, without limitation, licenses or rights under patents) are granted either directly, by implication, or otherwise.
   2. Account. In connection with your use of the Service, you or other Merchant Users may be required to register for an account (“Account”) for the Merchant Portal and/or the Processing Portal, as applicable. You must provide accurate and complete information and keep your Account information updated. If you provide any information that is inaccurate, not current or incomplete, or Prizeout has reasonable grounds to suspect that such information is inaccurate, not current or incomplete, Prizeout may deny you access to the Service and/or terminate your Account, at its sole discretion. Unauthorized access or use of another person’s Account or registration information is expressly prohibited. You must notify us immediately at techsupport@prizeout.com of any known or suspected breach of security or unauthorized use of your or another Merchant User’s Account. Merchant is solely responsible for any activity that occurs on any Account, for the use or misuse of the Service by any Merchant Users or unauthorized users, and for keeping all Account password and login credentials secure. Prizeout is not liable for any acts or omissions by any Merchant User in connection with his/her Account.
   3. Authorized Third Party. You may only allow access and use of the Service on your behalf by reputable third-party service providers (each, an “Authorized Third Party”) for the sole purpose of facilitating your use of the Service. Any Authorized Third Party shall create its own Account(s) and agree to and be bound by these Merchant Terms. All references to “Merchant” or “you” herein shall apply to any such Authorized Third Party, and any references to “Merchant User(s)” shall apply to the authorized employees and consultants of any such Authorized Third Party. In accordance with Section 4(c), any breach of these Merchant Terms by any Authorized Third Party will be deemed to be a breach by you.
   4. Use Restrictions. In Merchant’s use of the Service, Merchant and all Merchant Users agree not to (i) distribute, sell, lease, loan, sublicense, encumber or otherwise provide access to the Service to any person or entity other than Merchant Users and Authorized Third Parties as contemplated hereunder; (ii) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (iii) create derivative works of or otherwise modify the Service or make any copies of the Service, in any form; (iv) remove or alter any legal, copyright, trademark, watermark, or other proprietary rights notice contained in or on the Service; (v) attempt to bypass or break any security mechanism on the Service or use the Service in any manner that interferes with or disrupts the integrity, security or performance of the Service and its components; (vi) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; or (vii) launch or facilitate, whether intentionally or unintentionally, a denial of service attack on the Service or any other conduct that materially and adversely impacts the availability, reliability, or stability of the Service.
   5. Data Use: Merchant shall not receive personally identifiable information from Prizeout relating to any End User’s use of the Service (“End User Data”).
   6. Suspension and Removal: Prizeout reserves the right to restrict functionalities, remove any or all of your Campaigns or Gift Cards, suspend the Service (or any part thereof), suspend Merchant or any Users’ right to access and use the Service, and remove, disable or quarantine any data if Prizeout reasonably believes, suspects, or detects (i) that Merchant or any User has violated these Merchant Terms, any terms of use or our privacy policy (as applicable) or is using the Service in a manner that poses a security risk to the Service or any other merchants, partners or End Users of the Service; (ii) any malicious software connected to any Merchant Account or use of the Service by Merchant or any Merchant User; (iii) Merchant fails to make any payments or transfers of funds or Gift Cards to Prizeout in accordance with these Merchant Terms; (iv) any Campaigns or Gift Cards contain content which is false, deceptive, or misleading, fail to comply with any applicable international, federal, state and local laws (including applicable tax, consumer protection, gift card and stored value instruments, and privacy and data protection laws) (“Applicable Laws”), or violate any third-party’s intellectual property rights. Prizeout will use commercially reasonable efforts to notify Merchant via email when taking any of the foregoing actions. Prizeout shall not be liable to Merchant, any User or any other third party for any such modification, suspension or discontinuation of any rights to access or use the Service.

2. Campaigns and Gift Cards.

   1. Merchant may create and configure Campaigns specifying a variety of settings and factors, including discounts, bonuses and customizations via the Merchant Portal (“Configurations”), further details of which may be found in our Merchant Portal Overview. Prizeout is not required to pre-screen any Campaigns, but has the right, in its sole discretion, to pre-screen, refuse, remove or restore any Campaigns. Merchant represents, warrants and covenants that all Configurations are and will be complete and accurate, and may be offered to all Partners and End Users eligible under such Configurations.
   2.  Prizeout, in its sole discretion, uses a proprietary process dictated by a variety of factors, including, but not limited to your Configurations, in order to determine how your Gift Cards will be presented to End Users, further details of which may be found in our Merchant Portal Overview. Prizeout will rely on the then-current Configurations, and does not guarantee the frequency or rate at which Gift Cards will be displayed or the impact that your Configurations will have on the selection or purchase of your Gift Cards by End Users or Partners (as applicable).
   3. You may utilize the Service in order for Prizeout to create and make available for sale unique, digital codes for your Gift Cards on demand and securely store such codes on your behalf (the “Processing Service”) until redeemed by End Users via your website, mobile application and/or software (the “Merchant Platform”), in whole or in part, in exchange for the applicable form and value of funds. In the event that you use the Processing Service:
      1. Prizeout shall securely maintain and decrement the appropriate balance from purchased Gift Cards until the total value is fully redeemed.
      2. Via the Processing Portal, Merchant shall have the ability to: (A) view and report on all codes created in connection with purchased Gift Cards, including status and outstanding redemption value; and (B) open tickets and submit service requests to Prizeout.
      3. Merchant shall establish and be fully responsible for establishing and upholding its own policies and procedures relating to its Gift Cards, including, but not limited to:
         1. determining any applicable stored value limits of its Gift Cards, which shall in no event exceed TWO THOUSAND DOLLARS ($2,000);
         2. allowing End Users the ability to redeem the value of funds on the Merchant Platform associated with all valid Gift Cards;
         3. handling any disputes or third party conflicts arising out of, or relating to, the underlying terms, conditions, policies and procedures associated with your Gift Cards (including instructions relating to redemption) (“Gift Card Terms”);
         4. handling and managing active, redeemed and unredeemed Gift Cards; and
         5. complying with any and all regulatory and accounting requirements applicable to Merchant as the Issuer (as defined below) of the Gift Cards.
      4. Merchant shall be the Issuer of its Gift Cards. “Issuer” is defined by the Incentive Gift Card Council as an institution such as a retailer, bank or government department that bears the economic and legal responsibility, liability and risk for a prepaid or stored value product. Merchant is solely responsible for any and all work and costs incurred in connection with creating and maintaining its ability to honor the value of its Gift Cards, including any related point of sale integrations.
   4. If Prizeout is not providing the Processing Service to you, then the terms and conditions relating to the creation, processing, issuance, distribution, activation and redemption of Gift Cards are contained in your and our respective agreements with your third party processors, aggregators and distributors, or other applicable agreements between the Parties (as the case may be) (collectively, “Distribution Documentation”). Merchant agrees to supply all purchased Gift Cards to Prizeout in agreed upon denominations in accordance with the applicable Distribution Documentation.
   5. Merchant shall manage and honor all purchased Gift Cards for the full face value of all such Gift Cards created (if applicable) and sold via the Service in compliance with Applicable Laws and the Gift Card Terms. Merchant is solely responsible for providing Gift Card Terms along with Gift Cards, which shall comply with Applicable Laws, and shall not bind Prizeout or conflict with these Merchant Terms, any of our terms of use, our privacy policy or any of our policies or procedures.
   6. If any Gift Card cannot be redeemed, is provided in the incorrect amount or currency, is locked by your processor or otherwise fails or is in error, we may, in our sole discretion: (i) take additional steps to fulfill any such Gift Card, in which case, you authorize us to do so and agree to pay all expenses associated with any such fulfillment; or (ii) advise you of any such failure within a reasonable amount of time, in which case, you agree to provide us with prompt assistance (at your expense) in resolving any such failure and any other issues relating to the applicable Campaign or Gift Card, which may include replacement of any such Gift Card, or reimbursement or setoff for fees paid.

3. Payments.

   Prizeout will remit payment to Merchant for the value of each Gift Card purchased by End Users or Partners via the Service (less applicable costs and fees for using the Service, discounts, value of any Gift Cards refunded or cancelled, or other funds owed by Merchant to Prizeout) on a rolling basis within fourteen (14) days of the date of purchase of each Gift Card. If we have remitted payment to you for any Gift Cards that are later subject to refund or cancellation, you agree that we shall have to right to offset the amount of any such refunds or cancellations against future payment obligations, or to require reimbursement from you for any such amounts within fourteen (14) days. The Parties will make payments to one another (as applicable) in accordance with the Configurations in the Merchant Portal.

4. Representations and Warranties; Disclaimers.

   1. Authority; No Conflicts. Each Party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, and has the full right and legal authority to enter into, and fully perform, these Merchant Terms in accordance with its terms; and (ii) the execution, delivery and performance of these Merchant Terms by such Party: (A) is within such Party’s corporate power; (B) has been duly authorized by all necessary corporate action on such Party’s part; (C) does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any judgment decree or order, or any contract, agreement, or other undertaking, applicable to such Party, and no approval or other action by any governmental authority or agency is required in connection

      herewith

      ; and (D) shall constitute a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

   2. Compliance with Laws. Each Party hereby represents, warrants, and covenants that in performing its obligations and exercising its rights hereunder, it will comply in all material respects with all Applicable Laws relating to the Service provided hereunder, and will obtain and maintain all permits, licenses, and consents required in connection therewith.
   3. Acts, Errors, or Omissions. Each Party hereby represents, warrants, and covenants that it shall be solely responsible for any and all its acts, errors, or omissions and the acts, errors, and omissions of its third party service providers, including Authorized Third Parties (or any other person or entity acting on its behalf) utilized to satisfy its obligations associated with these Merchant Terms.
   4. Limited Warranty. Prizeout warrants that the Service will materially comply with the terms and conditions set forth herein. Merchant’s sole and exclusive remedy and Prizeout’s sole and exclusive liability for breach of the foregoing warranty shall be for Prizeout to repair or replace the defective component of the Service, or, if repair or replacement cannot be provided within a reasonable time, terminate the applicable component of the Service.
   5. DISCLAIMERS. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 4(D), THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND PRIZEOUT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MERCHANT ACKNOWLEDGES THAT PRIZEOUT DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY MERCHANT FROM PRIZEOUT OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE MERCHANT TERMS.

5. Intellectual Property.

   1. Limited Trademark License. During the term hereof, each Party hereby grants to the other Party a limited, revocable, non-exclusive and non-transferable right to use its name, trademarks and logos (collectively, “Marks”) in the Service in connection with providing the Service to Users, as well as on customer/vendor lists. Each Party represents and warrants that the use of its Marks by the other Party, as permitted hereunder, does not infringe upon or violate the Intellectual Property Rights of any third party. Merchant further represents and warrants that all materials, including, but not limited to, photographs, images, graphics and written content used in connection with any of its Campaigns and Gift Cards, do not infringe upon or violate the Intellectual Property Rights of any third party. “Intellectual Property Rights” means ownership of all right, title and interest in and to any kind of intellectual property, including copyrights, patents, Marks, trade secrets, rule sets, and all other proprietary rights therein, and the right to apply for, register, obtain, hold, extend and renew any of the foregoing.
   2. Prizeout Ownership. Prizeout and its third party vendors and licensors (as applicable) own all Intellectual Property Rights in and to the Service and any other products or services (and any portion thereof) used to provide the Service hereunder, along with source code, object code or underlying structure, ideas or algorithms, documentation, data, updates or derivative works related to any of the foregoing.
   3. License to Feedback. By submitting ideas, suggestions or feedback to Prizeout, Merchant agrees that items submitted do not contain confidential or proprietary information; and Merchant grants Prizeout an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.

6. Confidentiality.

   1. Treatment of Confidential Information. During and after the Term, Recipient shall: (i) protect and keep strictly confidential Disclosing Party’s Confidential Information and use it solely for the purpose for which it is provided and as permitted hereunder; (ii) only disclose or provide access to Disclosing Party’s Confidential Information to directors, members, partners, trustees, officers, employees, agents, consultants, affiliates, advisors, counsel, stakeholders, vendors or other representatives (collectively, “Representatives”) who are under confidentiality obligations at least as restrictive as those contained herein, on a need-to-know basis or as otherwise permitted hereunder; (iii) protect Disclosing Party’s Confidential Information using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use or disclosure of such Confidential Information, as Recipient uses to protect its own confidential information of a similar nature; (iv) make copies of Disclosing Party’s Confidential Information only to the extent permitted hereunder; and (v) not to develop any other materials, products, or services using Disclosing Party’s Confidential Information. “Confidential Information” as used herein, shall mean any information and/or documentation with respect to a Party (“Disclosing Party”), and its affiliates, employees, agents, customers or vendors, disclosed to the other Party (“Recipient”) (whether transmitted orally, in writing, or through any electronic medium), including, but not limited to: (A) trade secrets, work product, know-how, ideas, inventions, programs, algorithms, formulas, hardware, devices, designs, schematics, drawings, technical or engineering information, data systems processes or techniques, vendor and customer lists; (B) information relating to business plans, sales, pricing, product information, services, personnel, financial data, forecasts, strategies, marketing plans or methods, or security procedures and measures; (C) API’s, software, applications, programs and systems, including source code, object code, and documentation and commentary related thereto; (D) End User Data; (E) confidential information of third parties in Disclosing Party’s possession; (F) any information that is of value to its owner and is treated as confidential, or that gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to its interests; and (G) all information generally understood to be confidential, and all information which is maintained in confidence by Disclosing Party. “Confidential Information” shall be deemed to include: (y) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by Recipient or its Representatives which contain, reflect or are based upon, in whole or in part, any of Disclosing Party’s Confidential Information furnished to Recipient or its Representatives pursuant hereto; and (z) the terms and conditions of these Merchant Terms.
   2. Exceptions. “Confidential Information” does not include information that: (i) is known to Recipient, as evidenced by its written records, before receipt thereof under these Merchant Terms; (ii) is disclosed to Recipient by a third party who is under no known obligation of confidentiality to Disclosing Party with respect to such information; (iii) is or becomes generally known to the public through no fault of Recipient; or (iv) is independently developed by the Recipient, as evidenced by its written records, without use of any of Disclosing Party’s Confidential Information. The burden of proving any exception is on Recipient. Notwithstanding the foregoing, Recipient may disclose Disclosing Party’s Confidential Information pursuant to a subpoena or other validly issued administrative or judicial notice requesting the disclosure of Disclosing Party’s Confidential Information; provided, however, that Disclosing Party is given prompt written notice, an opportunity to object to such disclosure, seek protective treatment (for which Recipient will provide reasonable cooperation), and the scope of each such disclosure is limited to the greatest extent possible and made in accordance with the advice of legal counsel.
   3. Return/Destruction of Information. Upon termination or expiration of these Merchant Terms, upon Disclosing Party’s direction, Recipient shall promptly return to Disclosing Party or destroy all of Disclosing Party’s Confidential Information; provided, however, that, Recipient may retain copies of such Confidential Information as required by Applicable Laws, its internal protocols and procedures, or as may be electronically preserved or recorded automatically to standard back-up or archival systems, and, provided, further, that, with respect to such Confidential Information, Recipient will comply with its applicable policies and procedures, Applicable Laws and the obligations set forth herein.
   4. Equitable Relief. The Parties acknowledge and agree that there can be no adequate remedy at law for any breach of a Party’s obligations under this Section 6. Therefore, upon any such breach or threatened breach, the non­breaching Party will be entitled to seek appropriate equitable relief (without the necessity of proving actual damages or posting a bond), in addition to whatever remedies it may have at law.

7. Indemnification.

   1. Indemnification Obligations of Prizeout. Prizeout shall indemnify, defend and hold harmless Merchant and its directors, officers, employees and agents from and against any claims, liabilities, losses, damages and costs (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or relating to a third party claim, inquiry or investigation alleging that the use of the Service as permitted under these Merchant Terms, infringes or misappropriates such third party’s valid United States patent, copyright, trademark or trade secret (“Prizeout IP Claim”). In no event shall Prizeout have any obligations or liability under this Section 7(a) arising from the use of the Service (or any portion thereof) in a modified form or in combination with materials not furnished by Prizeout; or any content, information, or data provided by Merchant, Users or any other third parties (including Authorized Third Parties).
   2. Indemnification Obligations of Merchant. Merchant shall indemnify, defend and hold harmless Prizeout, its affiliates and each of their respective directors, officers, employees and agents from and against any and all Losses arising out of or relating to a third party claim, inquiry or investigation arising from or in connection with: (i) the use of the Service by Merchant, any Merchant User or Authorized Third Party; (ii) the provision of information or Gift Cards by Merchant in the event that Prizeout is not providing the Processing Service to Merchant; (iii) instructions or activities issued in any Account or by any Authorized Third Party; (iv) inaccuracies, errors or mistakes relating to Campaigns or Gift Cards; (v) misrepresentations, misstatements, or breaches of warranties or covenants under these Merchant Terms; or (vi) infringement of any patent, trademarks, copyright, design, confidential information or similar protection granted under Applicable Laws.
   3. Conditions to Indemnification. An indemnitor’s obligations to indemnify an indemnitee hereunder are conditioned upon (i) prompt notification of any Loss; provided, however, that failure by indemnitee to provide such notice shall not relieve indemnitor of any liability hereunder if no prejudice occurs; and (ii) indemnitee’s full cooperation in the defense of such Loss.
   4. Infringement Remedy. If the Service, or any portion thereof, becomes, or in Prizeout’s opinion is likely to become, the subject of a Prizeout IP Claim, then Prizeout may, in its sole discretion and at its expense: (i) obtain for Merchant the right to use the allegedly/potentially infringing portions of the Service; (ii) modify the allegedly/potentially infringing portions of the Service so as to render them non-infringing without substantially diminishing or impairing their functionality; or (iii) replace the allegedly/potentially infringing portions of the Service with non-infringing items of substantially similar functionality. If Prizeout determines that the foregoing remedies are not commercially reasonable, then Prizeout may terminate the infringing portions of the Service and repay to Merchant any pre-paid or pre-funded amounts relating thereto. The provisions of Sections 7(a) and 7(d) state the sole, exclusive and entire liability of Prizeout to Merchant and constitute Merchant’s sole and exclusive remedy with respect to a Prizeout IP Claim brought by reason of access to or use of the Service by Merchant or Merchant Users.

8. LIMITATION OF LIABILITY.

   TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL PRIZEOUT HAVE ANY LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER UNDER THESE MERCHANT TERMS OR OTHERWISE, FOR BUSINESS INTERRUPTION, OR LOSS OF REVENUE, PROFITS, DATA, GOODWILL, USE OR OTHER INTANGIBLE LOSSES, REGARDLESS OF THE FORM OF ACTION IN WHICH SUCH DAMAGES ARE ASSERTED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF PRIZEOUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL PRIZEOUT’S TOTAL AGGREGATE LIABILITY TO YOU UNDER THESE MERCHANT TERMS (INCLUDING ANY SCHEDULES, STATEMENTS OF WORK OR EXHIBITS HERETO), WHETHER FOR CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE LESSER OF THE GROSS PROFITS RECEIVED BY PRIZEOUT HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO A CLAIM OR TWENTY FIVE THOUSAND DOLLARS ($25,000).

9. Termination.

   Either Party may terminate these Merchant Terms at any time for any reason or no reason (subject to any applicable Distribution Documentation in the event that Prizeout is not providing the Processing Service to Merchant). Upon the termination hereof: (i) all rights and licenses granted by the Parties hereunder and all obligations of Prizeout with respect to the Service provided to Merchant will immediately cease; (ii) the Parties shall make any payments to one another in accordance with these Merchant Terms that are due through the effective date of termination; and (iii) in the event that Prizeout is not providing the Processing Service to Merchant, Prizeout will provide Merchant with a transaction data file of all unredeemed Gift Cards via an CSV or tab delimited file within thirty (30) days. Furthermore, Merchant shall continue to be obligated to manage and honor all outstanding, unredeemed or unclaimed Gift Cards.

10. General Provisions.

    1. Assignment. Neither Party may assign or delegate any of its rights or obligations under these Merchant Terms without the other Party’s prior written consent; provided, however, that either Party may assign these Merchant Terms in connection with an acquisition, merger, corporate reorganization, or sale, license or transfer of all, or substantially all, of its assets without obtaining the consent of the other Party. These Merchant Terms shall inure to the benefit of, and shall be binding upon, the Parties’ successors and permitted assigns.
    2. Modification. We may modify these Merchant Terms from time to time in which case we will update the “Last Revised” date at the top of these Merchant Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the Service. You waive any right you may have to receive specific notice of such changes or modifications, except as required by law. However, it is your sole responsibility to review these Merchant Terms and our other terms and policies from time to time to view any changes. The updated Merchant Terms will be effective as of the time of posting, or such later date as may be specified in the updated Merchant Terms. Your continued access or use of the Service after the modifications have become effective will be deemed your acceptance of the modified Merchant Terms.
    3. Notices. All notices hereunder shall be in writing and deemed to be properly given (i) upon personal delivery; (ii) if sent by electronic mail, upon confirmation of receipt; or (iii) if provided via overnight courier or registered or certified mail, upon confirmation of receipt. All notices shall be sent to the address set forth on the signature pages hereto or to such other address as may be designated by the Parties.
    4. Dispute Resolution. If the Parties cannot resolve a dispute or claim arising under these Merchant Terms (“Dispute”) after meeting and conferring in good faith, then no earlier than ten (10) days and no more than sixty (60) days following written notice to the other Party, either Party may initiate mandatory, confidential, non-binding mediation (“Mediation”) hereunder upon written notice to the other Party. The then-current JAMS International Mediation Rules and Procedures, either as written or as modified by mutual agreement of the Parties to the Dispute, shall govern any Mediation hereunder, and any Mediation shall be conducted in New York County in the State of New York. The mediator shall be jointly appointed by the Parties; provided, however, if the Parties cannot agree on a mediator, then one will be chosen by JAMS at random. All costs and expenses of the appointed mediator shall be shared equally by the Parties. Each Party shall be represented in a Mediation by one or more senior representatives duly authorized to resolve the Dispute. All offers, promises, conduct and statements, whether oral or written, made in the course of any Mediation by either of the Parties, their agents, employees, experts or attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration, litigation or other proceeding involving the Parties; provided, however, that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in any Mediation. If a Dispute has not been resolved within thirty (30) days after the conclusion of a Mediation, then any Party to the Dispute may commence litigation.
    5. Governing Law; Venue. These Merchant Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to its provisions governing conflicts of law. The Parties hereby consent to the exclusive jurisdiction of the state and federal courts located in New York County in the State of New York in connection with any Dispute.
    6. Independent Contractors. The relationship of the Parties is that of independent contractors. Nothing in these Merchant Terms will be deemed to create an association, partnership, joint venture, agency or employer and employee relationship between the Parties. Neither Party shall have any authority to act for or to bind the other Party in any manner.
    7. Severability; Remedies. If any part of these Merchant Terms is found to be invalid, illegal or unenforceable for any reason, then all other parts nevertheless remain valid, legal and enforceable. To the extent permitted by law, the rights and remedies in these Merchant Terms are cumulative and not exclusive of any other right or remedy that might be available under the law. If either Party fails to require the other Party to perform any provision of these Merchant Terms, such failure does not prevent such Party from later enforcing such provision.
    8. Waiver. The waiver by either Party of a breach of, or a default under, any provision of these Merchant Terms, shall be in writing and shall not be construed as a waiver of any subsequent breach of, or default under, the same or any other provision of these Merchant Terms, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
    9. Force Majeure. Neither Party will be liable for the failure to perform any obligation hereunder if such failure is caused by a “Force Majeure Event”, which shall mean causes that are beyond a Party’s reasonable control, including, but not limited to, acts of God, natural disasters, pandemics, war, civil disturbance, action by governmental entity and strike. The Party affected by a Force Majeure Event will provide prompt notice to the other Party and resume performance as soon as reasonably possible when such Force Majeure Event concludes.
    10. Survival. Termination or expiration of these Merchant Terms does not release either Party from obligations that, either expressly, or by their nature, survive termination or expiration hereof. Sections 3 through 10 shall survive the termination or expiration of these Merchant Terms.
    11. Entire Agreement; Amendments. These Merchant Terms, and any schedules, statements of work or exhibits hereto, supersede all prior or contemporaneous discussions, proposals, negotiations, agreements and communications, between the Parties regarding the subject matter hereof, and constitutes the entire agreement between the Parties concerning the subject matter hereof.