This Merchant Agreement (the “Agreement”) is between Innowi, Inc., a California corporation with offices at 3240 Scott Blvd Santa Clara, CA 95054 (“Innowi”), and the entity agreeing to these terms (“Merchant”). The Agreement is effective as of the date Merchant and Innowi execute an Order Form (defined in Section 2) or Merchant electronically accepts this Agreement (the “Effective Date”).
1. Innowi’s Services.
Innowi provides technology services to restaurants (the “Merchant” or “Merchants”) which enable their customers (“Customers”) to place orders for products and services through cashier-free solutions (the “Services”). The Services include software-based solutions such as Innowi’s point-of-sale software, ordering system, Quick Response (“QR”) scan-and-pay system, mobile applications, and web-based solutions (the “Software”). Certain Services are offered exclusively through hardware designed by Innowi that run the Software, such as the Innowi self-service kiosk, integrated POS platform (“Innowi POS Platform”), and kitchen display system, all of which are to be deemed a part of the Service (the “Hardware”). The Services are provided by Innowi through a subscription-based software-as-a-service model. The Services are provided subject to the terms and conditions contained in this Agreement.
2. Order Forms.
All subscriptions to Innowi’s Services are carried out through a separate ordering document duly executed by the parties and accepted by Innowi through express written confirmation by Innowi’s authorized representative (the “Order Form”). The Order Form may include details regarding the Service subscribed to by the Merchant such as the type of Service required, the term of the subscription (“Subscription Term”), and the Merchant’s business location where the Services are to be performed (“Merchant’s Location”). Each Order Form will be incorporated into this Agreement and will identify the Service, Software, and/or Hardware to be provided by Innowi.
Notwithstanding any language to the contrary therein, no terms or conditions stated in a Merchant purchase order or in any other Merchant correspondence or order documentation will be incorporated into or form any part of this Agreement or any Order Form, and all such terms or conditions will be null, unopposable and void. Amendments to any Order Form must be in writing and executed by both parties.
Innowi hereby grants Merchant and Merchant’s employees authorized to use the Services (the “Employees”) a revocable, nonexclusive, nontransferable, non-sublicensable license during the Subscription Term and the Term of this Agreement (defined in Section 28) to use and access the Services, Software, and/or Hardware as necessary for Merchant’s internal business purposes, provided Merchant complies with the restrictions in Section 4 (License Restrictions). Such internal business purposes do not include use by any parent, subsidiary, or affiliate of Merchant, or any other third party, and Merchant shall not permit any such use.
The Services, Software, and/or Hardware transferred pursuant to this Agreement are licensed, not sold, and Merchant receives no title to or ownership of any the Services, Software, and/or Hardware. Furthermore, Merchant receives no rights to the Services other than those specifically granted in this Section 3 (License). Innowi grants the license solely to the extent necessary to exercise such rights under patent and any other applicable Intellectual Property Rights (defined in Section 21).
The license will continue so long as Merchant maintains its subscription with Innowi, does not violate the restrictions laid out in Section 4 (License Restrictions), and complies with this Agreement. Failure to maintain subscription or pay the subscription amount in a timely manner, unless exempted in writing by Innowi, may result in the immediate revocation of the License by Innowi.
4. License Restrictions.
Merchant shall not:
- Modify, copy or create any derivative or integrated works based on the Service, Software, or Hardware;
- License, sublicense, sell, resell, rent, lease, transfer, assign (in all or part – this to include granting access for a limited time only), distribute, time share, offer in a service bureau, or otherwise make the Service, Software or Hardware available to any third party, other than the Employees;
- Reverse engineer or decompile any portion of the Service, Software or Hardware, including but not limited to, any software or hardware utilized by Innowi in the provision of the Service;
- Access the Service, Software, or Hardware in order to build any commercially available product or service; or
- Copy any features, functions, integrations, pathways, architecture, interfaces or graphics of the Service, Software or Hardware;
During the Subscription Term, Innowi, at its sole discretion, may develop and make improvements to the Services. This includes updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service or Software (“Improvements”). Innowi may make the Improvements available for use without a separate charge to Merchants, whereupon such Improvements will be incorporated in the license to the Service. If an Improvement to the Software is made available to Merchant, Merchant shall promptly update the Software in order for such Software to operate and perform in a manner consistent with the relevant documentation provided by Innowi that specifically illustrates, details, or expounds upon the functioning of the Services, Software, or Hardware (the “Documentation”). Innowi will not be responsible for providing any form of Maintenance Services if Merchant fails or refuses to incorporate any Improvements or updates or is is operating a version of the Software other than the then current version. For the avoidance of doubt, this Agreement does not entitle Merchant to any new products, services, or features developed by Innowi. Innowi shall not be responsible or liable for any loss of information, partial or not, use, interaction of the Software or Hardware with a third party’s products or services.
6. Maintenance Services.
Innowi shall use commercially reasonable efforts to provide to Merchant maintenance services during the Subscription Term. This includes hardware repairs or modifications, servicing, software updates, and support services (“Maintenance Services”). Innowi reserves the right to charge a separate fee other than that for the Subscription Term for each instance of a Maintenance Service requested by the Merchant.
Innowi’s obligation extends to only maintaining the current version(s) of the Software. If Merchant fails to update Software and suffers any loss or interference with Merchant’s use of the Services, Innowi will not be responsible for the loss.
7. Discontinuation or Modification of Services.
Innowi reserves the right to discontinue, modify and/or replace any Service, Software, or Hardware, subject to thirty days’ prior written notice (electronic notice acceptable).
8. Merchant’s Cooperation.
It is the Merchant’s obligation to ensure that all electronic data submitted by Merchant to Innowi is accurate and up to date (“Merchant Data”). Merchant acknowledges that its timely provision of Merchant Data, access to Merchant Location, interaction with Employees, and access to other materials, equipment, and facilities (where applicable) are essential to the performance of the Services. Innowi will not be liable for any deficiency or delay in performing Services to the extent resulting from Merchant’s failure to cooperate with Innowi with respect to any of the abovementioned factors.
9. Merchant’s Obligations.
Merchant is responsible for the use of the Services by the Employees and Customers. Merchant shall be liable for the acts and omissions of all Employees and Customers relating to this Agreement. Merchant shall:
a. Grant user IDs to Employees.
b. Require that all Employees keep user ID and password information strictly confidential and not share such information with any third party.
c. Prevent unauthorized access to, or use of, the Service and notify Innowi promptly of any such unauthorized access or use (including any unauthorized access or use caused by misuse or misappropriation of User IDs or passwords).
d. Comply with its obligations under all local, federal, or international law, rules, and regulations (“Laws”) applicable to Merchant’s use of the Service, including all such Laws related to privacy, data security, and data protection.
Merchant shall not:
a. Use the Service, Software, or Hardware in violation of applicable Laws.
b. In connection with the Service, Software, or Hardware, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights.
c. Infect, or cause to be infected, the Service, Software, or Hardware with any malicious code, viruses, worms, logic bombs, Trojan horses, malicious files, harmful scripts, or other malware.
d. Interfere with or disrupt performance of the Service, Software, or the data contained therein.
e. Attempt to gain access to the Service, Software, or Hardware or their related systems or networks in a manner not approved by Innowi or explicitly provided for in the documentation.
f. Use the Service, Software, or Hardware for benchmarking or testing performance, or for enhancing any products or services that relate to point of sale, payment processing, or commerce data.
g. Use the Service, Software, and Hardware for any purpose other than Merchant’s business purposes.
h. Use the Service, Software, and Hardware for at any location other than the Merchant Location.
i. Without Innowi’s prior written consent, use, duplicate, or disclose any data or information relating to the Service, Software, or Hardware that is made available by Innowi in connection with this Agreement, including any information related to the features, functionality, performance, pricing, application, or construction of any portion of the Service.
j. Continue to use the Service, Software, or Hardware after the expiration of the Subscription Term or the termination of this Agreement, unless the Merchant has fully purchased the Software or Hardware pursuant to a separate agreement with Innowi.
The Service and Software are intended to operate together with the Hardware to provide a comprehensive point of sale solution. Merchant agrees to use the Hardware and Software solely in connection with the Service and Software, and shall not attempt to reconfigure or use the Hardware or Software for any other purposes (for example, Merchant shall ensure that its employees do not install apps on the Hardware, do not use Hardware to browse the internet, and do not attempt to reconfigure point of sale peripherals to perform other functions or connect to other devices).
12.Configuring POS Transactions.
It is critical that Merchant understands how to configure and use the Services, including the Innowi POS Platform and administrative portal. Merchant acknowledges that it is Merchant’s obligation to seek assistance from Innowi representatives and Merchant’s other vendors if Merchant has any questions about the processing and crediting of Merchant’s point of sale transactions or if Merchant needs assistance with the configuration and operation of the Services or third party products, software and services, and Innowi will have no liability as a result of Merchant’s failure to do so.
Merchant further acknowledges that it is Merchant’s obligation to ensure on an ongoing basis that payments, loyalty transactions, and any other transactions running through the Services are processed properly, and that the respective currency, credit,
loyalty points, or other applicable transaction proceeds are accurately deposited in Merchant’s relevant accounts, and Innowi will have no liability as a result of Merchant’s failure to do so. In that regard, Merchant will perform a minimum of three (3) test transactions (e.g. $0.01 transactions) before going live to ensure that transactions processed on the Services are properly credited to Merchant’s account (the “Test Transactions”). Merchant shall retain documentation of all Test Transactions during the Term of this Agreement and for one year thereafter and will provide such documentation to Innowi upon request.
Further, Merchant agrees that, on at least a daily basis (and more often if reasonably prudent under the circumstances), Merchant shall check, validate and ensure that: (a) all proceeds from Merchant’s point of sale transactions were deposited in Merchant’s accounts timely and in full (net of any charges that Merchant has agreed to pay to payment processors); (b) data relating to loyalty, incentive or other similar programs was processed properly; and (c) point of sale transactions are batched daily to fully reconcile payment details with Merchant’s payment processing vendors, payment gateway, and financial institutions. Merchant assumes the responsibility to train and instruct the Employees regarding all of the foregoing Merchant obligations and Innowi will have no liability as a result of Merchant’s failure to do so.
Merchant acknowledges that access to and use of the full functionality of the Services requires a high speed internet connection and that Merchant is responsible for procuring and maintaining the network connections that connect the Hardware and Software to the Service. If Merchant uses any internet wireless router or other network access technology or network-enabled devices provided by Innowi, Merchant agrees that Innowi will have the right (although not the obligation) to encrypt and filter internet traffic for data security purposes and to otherwise manage or modify internet data transmissions.
Fees for the Service, Software, and Hardware will be invoiced in accordance with the relevant Order Form. Merchant shall also reimburse Innowi for all reasonable travel, lodging, communications, shipping charges and out-of-pocket expenses incurred by Innowi in connection with providing the Service, Software, and Hardware (“Expenses”). Except as otherwise stated in an Order Form, all fees are quoted and payable in United States dollars. Merchant shall provide Innowi with complete and accurate billing and contact information including a valid email address for receipt of invoices. Upon Innowi’s request, Merchant shall make payments to Innowi using the payment method communicated to the Merchant by Innowi in writing.
Except as specifically set forth herein or in the applicable Order Form, all payment obligations under any and all Order Forms are non-cancelable and all payments made are non-refundable. Subscriptions and other purchases on Order Forms may not be decreased during the applicable Subscription Term.
Innowi shall have the right to increase fees for the Service, Software, or Hardware and at any time during the term of this Agreement upon thirty days advance written notice.
Any payment not received from Merchant by the due date shall accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid. Merchant shall further be responsible for all costs and expenses incurred by Innowi or Innowi’s agents or assignees (including collection expenses and attorney fees) in connection with the collection of payments not made by Merchant on time or any other amounts overdue from Merchant.
16.Suspension of Services.
If Merchant’s account is past due, in addition to any other rights or remedies Innowi may have under this Agreement or by Law, Innowi reserves the right to disable the Software, repossess any Purchased Hardware for which Merchant has not made full payment, and immediately cease performing the Services, without liability to Merchant, until such amounts are paid in full. Merchant shall remain liable for any fees and other amounts payable under this Agreement during any period of suspension.
Except as otherwise stated in an Order Form, Innowi’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, “Taxes”). Merchant is responsible for paying all Taxes associated with licenses and acquisitions, including with respect to the Service, Software, and Hardware under this Agreement, excluding U.S. income taxes on Innowi. If Merchant has an obligation to withhold any amounts under any Law or tax regime (other than U.S. income tax law), Merchant shall gross up the payments so that Innowi receives the amount actually quoted and invoiced. If Innowi has a legal obligation to pay or collect Taxes for which Merchant is responsible under this section, the appropriate amount will be invoiced to and paid by Merchant, unless Merchant provides Innowi with a valid tax exemption certificate authorized by the appropriate taxing authority.
As between Innowi and Merchant, Merchant owns all Merchant Data made available to Innowi in connection with the Services. Innowi will have, and Merchant hereby grants and agrees to grant to Innowi, a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use the Merchant Data to configure and/or provide the Service, Software, Maintenance Services to Merchant, or to prevent or address service or technical problems, in accordance with this Agreement, the applicable Order Form or otherwise in accordance with Merchant’s instructions.
Notwithstanding the other provisions of this Agreement, Innowi shall also have a non-exclusive, fully paid, royalty-free, transferable, perpetual, irrevocable worldwide, right and license to use, access, make, have made, use, copy, distribute, maintain, modify, enhance, create derivative works of, aggregate, and re-purpose Merchant Data for the purposes (including commercial purposes) of analyzing activity, modeling, industry benchmarking, marketing, developing industry expertise and making product/service improvements. In any such use of Merchant’s Data, Innowi will ensure that only aggregate information is utilized, and in all cases all Merchant Data will be anonymized.
Innowi may collect certain information in connection with Merchant’s access to or use of the Service, such as access records, date and time stamps, transaction and activity records, and system performance data (“Usage Data”). Innowi may use Usage Data to, among other things, deliver and manage its products and services, perform maintenance and support, and develop, test, and improve the Service and other Innowi products and services, and generate statistical data about usage of its products and services. As between Innowi and Merchant, Innowi owns the Usage Data.
19.Third Party Payment Processors.
The Innowi POS system is designed to integrate with third party payment processors. Unless otherwise agreed by the parties in the applicable Order Form (and further subject to such terms, conditions and fees as Innowi may require), Merchant shall utilize a payment gateway provider and a payment processing services provider designated by Innowi (Innowi may bill and collect fees for such services, but Innowi in no way provides payment processing or gateway services). To the extent Merchant is required to enter into a separate agreement with any such third party payment gateway or payment processing services provider, or is required to agree to such third party payment gateway or payment processing services provider’s terms and conditions as set forth in an Agreement with Innowi, Merchant hereby agrees to do so.
For the purpose of this Agreement, the term “Intellectual Property Rights” means all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
Innowi owns or has license to all rights, title, interest, copyright and other worldwide Intellectual Proeprty Rights and trade secret rights in and to the Services, Software, and Hardware (including all derivatives or improvements thereof). No rights are granted to Merchant hereunder other than as expressly set forth in this Agreement.
All Improvements to the Services, Software, or Hardware are equally protected by Innowi’s Intellectual Property Rights, and no right, title, or interest in the Improvements shall vest in the Merchant regardless of Merchant’s input or Feedback (defined in Section 23) that contribute to developing the Improvements.
A party shall not disclose or use any Confidential Information of the other party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other party’s prior written permission. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care. A disclosure by one party of Confidential Information of the other party to the extent required by Law will not be considered a breach of this Agreement, provided the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party will have the right, in addition to any other remedies available, to seek injunctive relief to enjoin such acts without the necessity of posting a bond, it being acknowledged by the parties that any other available remedies are inadequate.
Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the other party; (b) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party, as evidenced by contemporaneous written records; (c) was independently developed by a party without breach of any obligation owed to the other party, as evidenced by contemporaneous written records; or (d) is received from a third party without breach of any obligation owed to the other party.
Merchant may voluntarily submit suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services (“Feedback”) at any time. Merchant irrevocably assigns all right, title, interest and other worldwide intellectual property rights in and to the Feedback to Innowi, Inc., and acknowledges that Innowi is free to use, disclose, reproduce and otherwise exploit all Feedback provided by Merchant relating to the Services in Innowi’s sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by Innowi. Innowi has no obligation to make Merchant Feedback an Improvement.
Merchant warrants to Innowi that it is a corporation or other legal entity duly organized, validly existing and in good standing in the jurisdiction of its formation, and that it has all necessary corporate or similar power and authority to execute and deliver this Agreement.
DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, SERVICE, SOFTWARE, HARDWARE, MAINTENANCE SERVICES ARE PROVIDED “AS IS” AND INNOWI, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. INNOWI DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, SERVICE, SOFTWARE, OR HARDWARE WILL BE ERROR FREE, UNINTERRUPTED OR FREE OF HARMFUL COMPONENTS OR THAT MERCHANT DATA, WILL BE SECURE OR NOT LOST OR DAMAGED. INNOWI SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE ITS REASONABLE CONTROL, INCLUDING ANY HARM OR DAMAGES CAUSED BY THIRD-PARTY HOSTING PROVIDERS. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO MERCHANT IN CONNECTION WITH THIS AGREEMENT. INNOWI MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ON BEHALF OF ANY THIRD PARTY PROVIDER
Merchant shall indemnify and hold harmless, and at Innowi’s request defend, Innowi and its affiliates, successors and assigns (and their officers, directors, employees, sublicensees, merchants and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to: (a) Merchant’s breach of this Agreement, including without limitation their failure to cease use of the Service, Software, or Hardware after Innowi’s direction; (b) revisions, modifications, or changes to the Services, Software, or Hardware without Innowi’s consent; (c) Merchant’s failure to incorporate Software updates or upgrades that would have malfunction of the Services; (d) Innowi’s creation or modification of the Services, Software, or Hardware in compliance with specifications furnished by the Merchant; (e) Merchant’s use of the Services in combination with hardware, software, or other products or services not provided by Innowi; (f) any third party claim, suit, or proceeding arising out of, related to, or alleging infringement or misappropriation of a copyright, trademark, or trade secret resulting from Innowi’s use of written material, photos, other images, logos, or other content provided or authorized by Merchant; (g) any third party claim, suit, or proceeding arising out of or related to the injury to or death of any individual or loss of or damage to real property or tangible personal property caused by the act or omission of Merchant or of any of its employees, subcontractors, or other agents; (h) Merchant or Employees’ use of the Services, Software, or Hardware to perpetrate fraud or any other criminal offence; (i) Merchant’s breach of this Agreement or applicable privacy or cybersecurity law.
Innowi shall give Merchant prompt notice of any claim to which Merchant’s indemnification obligation applies; provided, however, that the failure to give such notice shall not relieve Merchant of its obligations under this section except to the extent that Merchant was actually and materially prejudiced by such failure. Innowi may, at its option and expense, participate and appear on an equal footing with Merchant in the defense of any indemnification claim that is conducted by Merchant as set forth herein. Merchant may not settle any claim without the prior written approval of Innowi.
26.Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL INNOWI’S (OR INNOWI’S THIRD PARTY LICENSORS’ OR SUBCONTRACTORS’) TOTAL AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY MERCHANT DURING THE IMMEDIATELY PRECEDING THREE MONTH PERIOD FOR THE SERVICE, SOFTWARE, HARDWARE, OR SERVICES FROM WHICH THE CLAIM AROSE. THE FOREGOING LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT, AND THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT
ENLARGE THAT LIMIT. THE MERCHANT EXPRESSLY AGREES AND ACCEPTS TO WAIVE ANY ADDITIONAL RIGHT TO CLAIM AMOUNTS IN EXCESS OF THE ABOVE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL INNOWI (OR INNOWI’S THIRD PARTY LICENSORS OR SUBCONTRACTORS) HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF DATA RECONSTRUCTION OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, SOFTWARE, HARDWARE, OR SERVICES OR PROFESSIONAL SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF INNOWI OR INNOWI’S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
Term of the Agreement
The term of this Agreement (the “Term”) commences on the Effective Date and continues until terminated in accordance with the terms set forth herein.
The Subscription Term is set forth in the applicable Order Form. Unless otherwise specifically set forth in the Order Form, Innowi’s standard Subscription Term term is thirty-six months from the date upon which Innowi first bills Merchant for monthly Software and/or Services subscription services (the “Standard” or “Initial Subscription Term”). Thereafter, the Initial Subscription Term will automatically renew for one year every year until such time as a party gives thirty days prior written notice of termination of the applicable Order Form. Merchant is hereby agreeing that each Merchant location for which it signs an Order Form under this Agreement will not utilize any point of sale system other than the Services at such location for the entire duration of the applicable Subscription Term.
28.Termination and Suspension.
A party may terminate this Agreement or the applicable Order Form (a) upon thirty days prior written notice to the other party of a material breach of this Agreement by the other party if such breach remains uncured at the expiration of such notice period; or (b) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event the Agreement is terminated, all Order Forms are simultaneously terminated. A termination of one Order Form will not constitute termination of any other Order Forms or this Agreement.
Upon any termination of this Agreement, Merchant shall, as of the date of termination, immediately cease accessing and utilizing the Service, Software, Services, Hardware (except to retrieve Merchant Data), and Innowi Confidential Information. Merchant will return all Innowi Confidential Information, including but not limited to, any Documentation, and any Hardware the Merchant has not fully paid for as of the date of termination, at Merchant’s expense, within fifteen days of termination.
Survival of Obligation to Pay Fees.
Termination for any reason will not relieve Merchant of the obligation to pay any fees accrued or due and payable prior to the effective date of termination.
Upon early termination by Merchant or termination by Innowi for other material breach, Merchant shall also pay the greater of the sum of either: (i) two times the amount of monthly recurring revenue which would have been due to Innowi if Merchant had continued to receive services under the applicable Order Form(s) for the duration of the Initial Order Form Term; or (ii) $25,000, and shall forfeit any deposits. The Merchant and Innowi acknowledge and agree that the sums payable under the foregoing sentence shall constitute liquidated damages and not penalties and are in addition to all other rights of Innowi.
Those provisions that by their express terms survive or which by their nature should survive, will survive the expiration or any termination of this Agreement. Termination of this Agreement by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party will be liable to the other party for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party will be without prejudice to any other right or remedy of such party under this Agreement or applicable Law.
Suspension of Service.
In addition to any other rights or remedies it may have under this Agreement or by Law, Innowi may immediately suspend provision of the Service without liability to Merchant: (a) if Merchant’s account is past due until paid in full; (b) if Merchant breaches Section 10 (Merchant Obligations) or Section 4 (Restrictions); (c) to avoid harm or liability to Innowi or its other Merchants, including in the case of denial of service attacks or other disruptions; or (d) if required by Law or requested by a governmental authority. Merchant shall remain liable for any fees and other amounts payable under this Agreement during any period of suspension.
Agreement to Arbitrate.
Merchant agrees that all disputes or claims that have arisen or may arise between Merchant and Innowi, whether arising out of or relating to this Agreement or in connection with Merchant’s use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Merchant may assert individual claims in small claims court, if the claims qualify. Merchant agrees that, by agreeing to this Agreement, Merchant and Innowi are each waiving the right to a trial by jury or to participate in a class action. Merchant’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate, provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualised Relief.
Merchant and Innowi agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Merchant and Innowi agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
Pre-Arbitration Dispute Resolution.
Most concerns can be resolved quickly and to all parties’ satisfaction by emailing Innowi’s Customer Care team at [*]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Innowi should be sent to 3240 Scott Blvd, Santa Clara, CA 95054, United States. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If Merchant and Innowi do not resolve the claim within sixty (60) calendar days after the Notice is received, Merchant or Innowi may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Innowi or Merchant shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Merchant or Innowi is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable Law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Merchant and Innowi agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by the AAA. If Merchant’s claim is for $10,000 or less, Innowi agrees that Merchant may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If Merchant’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the way the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
The seat of the arbitration shall be at Santa Clara, California, unless otherwise specified by Innowi.
Costs of Arbitration.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than “Agreement to Arbitrate” above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of “Agreement to Arbitrate” is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Arbitration Agreement will continue to apply.
Methods of Indicating Agreement to these Terms.
Merchant acknowledges and agrees that by executing an Order Form for Innowi’s Services, Merchant is indicating their consent to these Terms and/or other applicable agreement(s).
Merchant may not assign these Terms or any rights or obligations hereunder, by operation of law or otherwise, without Innowi’s prior written consent and any attempted assignment may be void. Innowi reserve the right to freely assign this Agreement and the rights and obligations hereunder, to any third party without notice and consent. Subject to the foregoing, these Terms shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
Any action, claim, or dispute related to this Agreement will be governed by the laws of California, excluding its conflicts of law provisions, and controlling U.S. federal law. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act will not apply to these Terms of Service.
If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. Failure of Innowi to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision herein. No waiver will be effective against Innowi unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Innowi and Merchant, these Terms, including any Innowi policies governing the Services referenced herein, constitute the entire agreement between Merchant and Innowi with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between Merchant and Innowi with respect to the subject matter.
Relationship of the Parties.
The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The relationship of the parties described in this Agreement is non-exclusive. There are no third party beneficiaries to this Agreement.
During the Term of this Agreement and for a period of twelve months after termination or expiration of this Agreement or any Order Form, Merchant shall not directly or indirectly solicit as an employee or independent contractor any employee working for Innowi. The parties acknowledge this provision does not apply to responding to unsolicited applications, or responding to unprompted responses to general advertisements, or independently (without direction or advice) presented by an independent recruiting firm.
Innowi may draw on the resources of (and subcontract to) its affiliates and third party contractors and subcontractors, within or outside of the United States (each, a “Innowi Vendor”) for internal, administrative and compliance purposes or in connection with the hosting or provision of the Service and other products and services to be provided by Innowi pursuant to this Agreement. Merchant agrees that Innowi may provide information, data and materials that Innowi receives in connection with this Agreement (including Merchant Data) to the Innowi’s vendors for such purposes.
Merchant agrees that Innowi may use Merchant’s name and logo in lists of Merchants, on promotional and marketing materials and on its website. Innowi agrees that, subject to Innowi’s written consent in each instance, Merchant may use Innowi’s name and
logo to identify Innowi as Merchant’s point of sale solution provider on promotional and marketing materials and on its website.
All notices under this Agreement will be in writing and will be deemed to have been given upon: (a) personal delivery; (b) the third business day after first class mailing; or (c) the second business day after sending by facsimile with telephonic confirmation of receipt. Notices to Innowi will be addressed to the attention of the Legal Department, Innowi. Notices to Merchant will be addressed to the address in the applicable Order Form. Each party may modify its recipient and address of notices by providing notice pursuant to this Agreement.
Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at Law or in equity.
Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. For the avoidance of doubt, COVID-19 related matters may not be declared as a Force Majeure event under this Agreement.
From time to time, Innowi may modify this Agreement and/or the URL Terms and such modifications will become effective for Merchant upon renewal of its then-current subscription to the Service; provided that Innowi may specify an earlier effective date if Innowi believes the change is required to comply with Law. Merchant may be required to electronically accept or otherwise agree to the modified Agreement or URL Terms before renewing a subscription, and in any event, continued use of the Service after an updated version of the Agreement or URL Terms goes into effect will constitute Merchant’s acceptance of the updated Agreement or URL Terms. Except as set forth above, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted