THESE II TECHNOLOGIES (“IIT”) TERMS & CONDITIONS (HEREINAFTER “AGREEMENT”) CONSTITUTE A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND II TECHNOLOGIES (“IIT”). PLEASE READ IT CAREFULLY. BY CHECKING THE BOX INDICATING THAT YOU AGREE TO IIT’S TERMS AND CONDITIONS OR BY USING THE SERVICES DEFINED BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY (AND THAT YOUR COMPANY WILL BE BOUND BY) ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL DOCUMENTS INCORPORATED BY REFERENCE. IF YOU ARE USING THE SERVICE ON BEHALF OF ANY ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS AND CONDITIONS ON SUCH ENTITY’S BEHALF. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE BOX INDICATING THAT YOU AGREE TO IIT’S TERMS AND CONDITIONS AND DO NOT USE THE IIT SERVICES.
1.1 Introduction. In this Agreement (“Agreement”), “Merchant”, “you” and “your” refer to you the customer (and your designated agents, including your administrative contact) and “IIT”, “we”, “us” and “our” refer collectively to II Technologies and its wholly owned subsidiaries (“IIT”). This Agreement explains our obligations to you, and your obligations to us in relation to the IIT service(s) you purchase. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional IIT Service(s) or to modify or cancel your IIT Service(s), you are bound by the actions of such individuals. Acceptance of your requests for Services and the performance of our Services will be deemed to occur at our offices in Boynton Beach, FL.
1.2 License and Restrictions. PayTrace and IIT and its licensors grant you a limited nonexclusive, non-transferable license to use the Software in the course of using the Services for the purposes stated herein. You may not rent, lease or otherwise transfer your rights to use the software to a third party. You must comply with the implementation and use requirements contained in all IIT documentation accompanying the Services. If you do not comply with PayTrace and IIT’s implementation and use requirements you will be liable for all resulting damages suffered by you, PayTrace, IIT and third parties.
2.1 “Financial Institution” shall mean banks, trust companies and other entities that deal with financial transactions having business relationships with one or more Financial Processors that have agreed to evaluate or provide merchant accounts and payment authorization services to merchants.
2.2 “Financial Processor” shall mean an entity with which PayTrace and IIT have established a relationship that performs the back-end authorization and processing of Transactions between your Financial Institution and the cardholder’s bank.
2.3 “Services” shall mean the Virtual Terminal services used by you and any input-group-addon services offered by IIT. Current descriptions of IIT’s payment processing software or PayTrace Virtual Terminal services can be found at the URL: https://paytrace.com.
2.5 “PayTrace Virtual Terminal” means PayTrace’s online account management tools for merchants using PayTrace’s payment processing software and / or PayTrace Virtual Terminal input-group-addon Services that are part of the Services.
2.6 “Transaction” shall mean purchases/sales and refunds/credits.
3.1. General Service Requirements. You shall be solely responsible for:
- Establishing and maintaining a connection to the Internet and running software, such as, without limitation, operating systems and browsers, that are actively supported and regularly updated with current updates.
- Updating to the most current Software version and security updates and patches necessary to properly operate the Services.
- Keeping all Merchant information current and updated on the PayTrace Virtual Terminal.
- Fulfilling all orders for products and services placed through PayTrace and IIT Services sold by you to your customers,
- Transmitting your Transaction data to PayTrace servers or via the PayTrace Virtual Terminal and ensuring that any data stored or transmitted by you in conjunction with the Services is accurate, complete and in the form as requested by PayTrace and IIT, is securely collected and is not corrupted due to your systems.
- Reviewing the Transaction records in your account on a regular basis and notifying IIT promptly of suspected unauthorized activity through your account;
- Establishing and maintaining a merchant service account with one or more Financial Institutions and maintaining PCI compliance as prescribed by said Financial Institution. The terms of such relationship shall be determined solely by you and the Financial Institution;
- Keeping your login name and password confidential. You shall notify IIT immediately upon learning of any unauthorized use of your username or password. You shall be solely responsible for (i)periodically updating your passwords for access to the Services, and (ii) creating passwords that are reasonably “strong” and compliant with IIT’s requirements. A “strong” password is at least seven characters long, does not contain all or part of the users account name, and contains at least three of the four following categories of characters: uppercase characters, lowercase characters, base 10 digits, and symbols found on the keyboard (such as !, @, #). Strong passwords should be generated in such a way that knowledge of one does not lead to knowledge of another.
- Managing users to whom You provide access to Your IIT Services and eliminating such access when they are no-longer authorized to have access.
- Maintaining commercially reasonable business practices in conjunction with use of the Services, collecting, storing and transmitting its customer data in a secure manner and protecting the privacy of its customer data. You shall comply with IIT’s requests for reasonable action on your part, to the extent necessary, to maintain security and integrity of the Services;
- (A) Using the Services in accordance with the applicable user guides and other documentation; and (B) not using or permitting others to use information obtained through the use of the Services for any purpose other than as intended.
3.2. Proprietary Rights. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (“PayTrace Intellectual Property Rights”) are owned by PayTrace or its licensors, and you agree to make no claim of interest in or ownership of any such IIT Intellectual Property Rights. You acknowledge that no title to the PayTrace Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the PayTrace and IIT service or that of its licensors, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you by IIT, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by PayTrace and all right, title and interest in and to each such Derivative Work shall automatically vest in PayTrace. PayTrace shall have no obligation to grant you any right in any such Derivative Work. Except to the extent permitted by applicable law, you shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. You shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Software, Services or components thereof.
3.3. Code of Conduct. You agree that you will not at any time conduct Your business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which:
- is unlawful or violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation;
- infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
- contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate the Services or any system, program, data or personal information or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party;
- violates any U.S. export or import laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce;
- offers or disseminates fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice; The foregoing list is a non-exhaustive list of prohibited goods and services.
3.4. Enforcement. Company reserves the right and has absolute discretion to terminate or suspend your access to the Services if it determines that your activities violate this Agreement. Without limitation, Company also reserves the right to report any activity (including the disclosure of appropriate data or merchant information) that it suspects may violate any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Company also may cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct. If you want to report any violations of these guidelines, please contact email@example.com.
4.1 Services. Subject to the terms in this Agreement, and subject to your compliance with your obligations to a Reseller of the Services, PayTrace and IIT agrees to provide you the Services for which you enroll, including (i) transmission of Transaction information to Financial Processors, (ii) access to standardized reports regarding your Transactions processed using the Services and (iii) access to certain reporting tools to assist you in accounting activities. PayTrace hereby grants to you the right to access and use the Services in accordance with this Agreement.
4.2 Modification of Terms; Changes to Services. Except as otherwise provided in this Agreement, you agree that IIT may: (1) revise the terms and conditions of this Agreement, and/or (2) change the Services provided under this Agreement at any time. In such case, you shall be emailed notification of said change thirty (30) days in advance of the effective date of such change. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice as set forth in this Agreement. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as otherwise expressly stated herein, but you will not incur any additional fees. By continuing to use IIT Services after any revision to this Agreement or change in Services, you agree to abide by and be bound by any such revisions or changes.
4.3 Secure Transactions. PayTrace has implemented and will maintain industry standard security systems for the transmission and storage of information regarding your Transactions. IIT does not guarantee the security of the Services or Transaction data, and IIT will not be responsible in the event of any infiltration of its security systems, provided that IIT has used commercially reasonable efforts to prevent any such infiltration. PayTrace protects data by controlling both physical and electronic access to all sensitive data. Access is limited to individuals with specific business justification to access and manage the data, and their access is closely monitored and controlled. PayTrace is currently and will continue to be compliant with industry requirements such as the PCI Data Security Standard. PayTrace and IIT’s services provide the ability for you to store your Transaction data on PayTrace’s network. In the event that you store Transaction data externally to PayTrace’s servers, you acknowledge and agree that you, and not PayTrace or IIT, are responsible for the security of Transaction data or any other information stored by you, and that PayTrace or IIT is not responsible for any other party’s information storage.
You acknowledge and agree that in the course of providing the Services, PayTrace will capture certain Transaction and user information (collectively, the “Data”). You agree to provide to PayTrace, and PayTrace shall capture, only the Data that is required in order to provide the Services. PayTrace and IIT shall not disclose Data to third parties or use the Data, except (i) as necessary to perform the Services contemplated in this Agreement (including distributing the Data to third parties providing services requested by Merchant); (ii) to maintain the Data as long as necessary or as required by law and used internally for record keeping, internal reporting, and support purposes; (iii) to compile and disclose Data in the aggregate where individual merchant Data is not identifiable, including without limitation, calculating merchant averages by region or industry; and (iv) to provide the Data as required by law or court order, or to defend PayTrace and IIT’s rights in a legal dispute. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our Services with regard to: (i) the purposes for which such third party’s personal data has been collected, (ii) the intended recipients or categories of recipients of the third-party’s personal data, (iii) which parts of the third party’s data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, correct the data you hold about them. You further agree to provide such notice and obtain such consent with regard to any third-party personal data you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals nor for your providing outdated, incomplete or inaccurate information.
If you have purchased your Services through a Reseller, all fees are governed by your Agreements with such Reseller. If you purchased your Services directly from IIT, a separate agreement regarding fees governs payments to IIT.
7.1 IIT represents and warrants that (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of IIT, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken. EXCEPT AS EXPRESSLY SET FORTH ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IIT AND ITS LICENSORS, AS APPLICABLE, DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES OR SOFTWARE, AND ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED BY IIT AND ITS LICENSORS. MERCHANT ACKNOWLEDGES THAT NEITHER IIT NOR ITS LICENSORS HAVE REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES OR THAT ALL ERRORS WILL BE CORRECTED AND ANY SUCH WARRANTIES ARE DISCLAIMED.
7.2 Merchant represents and warrants that it shall comply with all applicable privacy, consumer and other laws and regulations with respect to its (i) provision, use and disclosure of the Data; (ii) dealings with the users providing the Data; and (iii) use of the Services. Additionally, Merchant represents and warrants that (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of Merchant, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken; (c) this Agreement constitutes its valid and legally binding obligation, enforceable against it in accordance with the terms hereof; (d) if Merchant is a corporation, then it is a corporation in good standing in its jurisdiction of incorporation; (e) it has read and understands the entire Agreement and desires to be bound thereby, and it has been represented by counsel of its own choosing; and (f) it represents and warrants that, except as expressly set forth herein, no representations of any kind or character have been made to induce it to execute and enter into this Agreement.
This section is subject to the terms of Section 9. Each party shall defend, indemnify, save and hold harmless the other party and the officers, directors, agents, and employees (“indemnified parties”) from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from the indemnifying party’s material breach of any duty, representation or warranty of this Agreement. A party’s right to indemnification under the Agreement is conditioned upon the following: prompt written notice to the party obligated to provide indemnification of any claim, action or demand for which indemnity is sought; control of the investigation, preparation, defense and settlement thereof by the indemnifying party; and such reasonable cooperation by the indemnified party, at the indemnifying party’s request and expense, in the defense of the claim. The indemnified party shall have the right to participate in the defense of a claim by the indemnifying party with counsel of the indemnified party’s choice at the indemnified party’s expense. The indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment that makes any admissions in the indemnified party’s name or imposes any liability upon the indemnified party.
LIMITATIONS ON LIABILITY
You acknowledge that PayTrace and IIT are not financial or credit reporting institutions. PayTrace is responsible only for providing data transmission to effect or direct certain payment authorizations for you and is not responsible for the results of any credit inquiry, the operation of web sites of ISPs or Financial Institutions or the availability or performance of the Internet, or for any damages or costs you suffer or incur as a result of any instructions given, actions taken or omissions made by you, your financial processor(s), your Financial Institution or any ISP. IN NO EVENT SHALL IIT’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO IIT BY MERCHANT HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT SHALL PAYTRACE, IIT OR ITS LICENSORS HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT PAYTRACE OR IIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law. YOU WAIVE CALIFORNIA CIVIL CODE 1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF NOT KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
TERM AND TERMINATION
Either party may terminate the Services at any time for any reason by providing written or email notification to the other, and if you purchased your Services through a Reseller, you should notify your Reseller. Upon termination of this Agreement, IIT shall discontinue providing services to you. In the event of termination, PayTrace shall retain records of Transactions for one year from date of Transaction creation.
11.1 Confidential Information. “Confidential Information” means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential.
11.2 Confidentiality Obligations. Each party (i) shall not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and for purposes of performing this Agreement, and (ii) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party’s Confidential Information only for the purpose of its performance under this Agreement. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information and which are provided to the receiving party hereunder.
11.3 Limitation of Confidentiality. The Obligations set forth in Section 11.2 (“Confidentiality Obligations”) above do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party.
11.4 Exceptions to Confidentiality. Notwithstanding the Confidentiality Obligations set forth in Section 11.2 above, each party may disclose Confidential Information of the other party as permitted by law (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations in this Section to its legal counsel, accountants, contractors, consultants, banks and other financing sources.
12.1 Force Majeure (Events Beyond the Parties’ Control). Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder, except for your payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section shall give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate the Agreement.
12.2 Entire Agreement and Modification. The terms in this Agreement, together with any information provided by you, constitute the entire agreement between IIT and you regarding its subject matter and such terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the parties hereto. You acknowledge and agree that in the event that you propose additional terms, provisions or language to this Agreement, those Terms shall be null and void and the terms of this Agreement shall prevail.
12.3 Severability. In the event that any provision of this Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
12.4 No Assignment. You may not assign this Agreement or its rights or obligations hereunder without the prior written consent of IIT.
12.5 Disputes. The validity of this Agreement and the rights, obligations, and relations of the parties hereunder shall be construed and determined under and in accordance with the laws of the State of Florida, without regard to conflicts of law principles. In the event of any dispute arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If they do not resolve the dispute within a period of sixty (60) days, then either party may, by notice to the other party demand mediation under the mediation rules of the American Arbitration Association. If the dispute is not resolved within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in Palm Beach County, Florida. The language of all proceedings and filings shall be English. The arbitrator shall render a written opinion including findings of fact and law and the award and/or determination of the arbitrator shall be binding upon the parties, and their respective administrators and assigns, and shall not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration shall be shared equally by the parties unless the arbitration determines that the expenses shall be otherwise assessed. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within ninety (90) days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
12.6. Venue and Jurisdiction. In the event that any matter is litigated rather than arbitrated, each party consents to the exclusive venue and jurisdiction of the appropriate state or Federal courts for Palm Beach County, FL for any dispute arising out of or related to this Agreement. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
12.7 Notice. Except as otherwise expressly stated in this Agreement, all notices to IIT shall be in writing and delivered, via courier or certified or registered mail, to IITechnologies, Attention: Legal Department, Suite 300, 5585 Monkland Ave., Montreal, QC H4A1E1, or any other address provided by IIT. All notices to you shall be delivered to your mailing address or e-mail address as provided by you in your account information, as updated by you pursuant to this Agreement. Unless you choose to opt-out of receiving marketing notices, you authorize PayTrace and IIT to notify you as our customer, via commercial e-mails, telephone calls and other means of communication, of information that we deem is of potential interest to you, including without limitation, communications describing upgrades, new products and Services or other information pertaining to the Services. Notwithstanding the above, you shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.
12.8 Headings. The section headings appearing in the Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
12.9 Independent Contractors. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
12.10 Non-Disparagement; Publicity. During the term of the Agreement, neither party will disparage the other party or the other party’s trademarks, web sites, Products or Services, or display any such items in a derogatory or negative manner on any web site or in any public forum or press release. Unless otherwise stated herein, neither party shall issue a press release or otherwise advertise, make a public statement or disclose to any third party information pertaining to the relationship arising under this Agreement, the existence or terms of the Agreement, the underlying Transaction data without the other party’s prior written approval.
12.11 Costs. Except as expressly stated in the Agreement, each party shall be solely responsible for its costs and expenses of performing its obligations hereunder.
12.12. Non-Waiver. The failure of either party to exercise any of its rights under this Agreement or to require the performance of any term or provision of this Agreement, or the waiver by either party of such breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such right or be deemed a waiver of any subsequent breach of the same or any other term or provision of this Agreement. Any waiver of the performance of any of the terms or conditions of this Agreement shall be effective only if in writing and signed by the party against which such waiver is to be enforced.
12.13 Survival. Sections 1.1, 2, 3.2-3.4, 4-12, as well as any other terms which by their nature should survive, will survive the termination of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
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