MERCHANT TERMS AND CONDITIONS
6. CONTENT OWNERSHIP. We acknowledge that all images, offers, surveys, campaigns and/or any other content created by you on this website is your property and we have no ownership right to any of it. We do not pre-screen, review or monitor any content create or uploaded to this website. However, we do reserve the right, on our sole discretion, to review and remove any content found to violate these terms and conditions. If at Customer Connect’s sole discretion any content from Merchant is deemed objectionable, Customer Connect may immediately suspend access to the Platform and/or Software until the content is removed to Customer Connect’s satisfaction.
7. FEEDBACK. Merchant may from time to time provide suggestions, comments or other feedback with respect to the products or services of the Receiving Party (“Feedback”). Both Parties agree that all Feedback is and shall be given entirely voluntarily. Customer Connect shall be free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind. 8. OWNERSHIP. Merchant acknowledges and agrees that Customer Connect and its licensors are the owners of all right, title and interest in and to the Software, the Platform, and all updates, upgrades, and derivative works thereto, including anything developed or created by Customer Connect., and all intellectual property rights therein including anything developed or created by Customer Connect, and that Merchant will not obtain or claim any ownership interest in the foregoing. 9. PAYMENT. Merchant will pay Customer Connect monthly on the first day of each month. Merchant must maintain a valid credit card on file with Customer Connect. Fees are due in advance. If Merchant subscribes on any day other than the first of the month, the subscription fees will be pro-rated to the end of the month. If Customer Connect bills Merchant for fees owed hereunder, Merchant’s payment will be considered delinquent if a payment is not received within fifteen (15) days following the receipt of an invoice for such payments. If Merchant is paying via credit card, Merchant authorizes Customer Connect to charge the fees due hereunder (and any other charges Merchant may incur in connection with the Platform (such as taxes)) to Merchant’s provided payment instrument in advance on a monthly basis using the credit card info Merchant provides on the Subscription page. Merchant is responsible for keeping its payment instrument and all associated information (such as the expiration date of a credit card) current at all times. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Merchant does not promptly update its payment instrument information, (a) Customer Connect reserves the right to suspend Merchant’s access to the Platform until such time as payment is successfully settled, including past due payments, if any and (b) Merchant authorizes Customer Connect to continue charging its payment instrument, as it may be updated. If Merchant’s use of the Platform exceeds the capacities or limits on its Subscription page or otherwise requires the payment of additional fees, Merchant hereby authorizes Customer Connect to charge such additional fees to Merchant’s payment instrument immediately. All fees shall be paid in U.S. dollars. All fees paid are non-refundable. Merchant agrees to pay the costs and expenses incurred by Customer Connect or on behalf of Customer Connect in connection with the collection of any unpaid charges and fees. Merchant agrees to cover any additional bank charges associated with all Customer Connect payments and fees. Customer Connect is not obligated to pay any item presented for payment if Merchant's account does not contain sufficient collected funds. Merchant will be responsible for all taxes in connection with this Agreement (excluding taxes based on Customer Connect’ net income). Billing will commence on the first billing date, as specified in the Order Form. 10. TERM AND TERMINATION.
10.1 Term. The term of this Agreement shall start on the effective date or the subscription start date (as applicable) (“Effective Date”) and continue on a monthly basis unless terminated by Merchant or Customer Connect.
10.2 Termination. Either party may terminate this Agreement if the other party breaches or defaults on any of its obligations under this Agreement (such that the breach or breaches, individually or in the aggregate, deprive the other party of the intended benefit of this Agreement) and said breach or default continues un-remedied for a period of thirty (30) days after the breaching party’s receipt of written notice. Written notices of breach must specify the grounds of such breach or default in reasonable detail. Except as provided in this Section and Section 10.1 above, Merchant may terminate its use of the Platform upon 30 days advance written notice but no refund shall be provided.
10.3 Effect of Termination. Upon termination of this Agreement, Merchant’s rights to use and access the Platform will immediately cease and Merchant will cease using and accessing the Software and the Dashboard and pay any associated fees in accordance with the Subscription page preferences. Sections 5 through15 will survive the termination or expiration of this Agreement.
11. INDEMNIFICATION. Merchant will indemnify, defend, and hold harmless Customer Connect, its owners, affiliates, shareholders, and employees from and against any third party claim or action brought relating to (a) the Merchant Rewards Programs, (b) Merchants online/mobile ordering, (c) Merchant’s breach of this Agreement (d) Merchant’s negligent or willful acts or omissions or (e) Merchant’s breach of this Agreement including violations of law and Merchant will pay (i) any settlements entered into between Customer Connect and the third party claimant or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction. Customer Connect shall (a) provide Merchant with prompt written notice of any claim, (b) grant Merchant sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to Customer Connect in the defense or settlement of the claim at Customer Connect’ expense. Merchant shall not admit liability on Customer Connect’s behalf without Customer Connect’s advanced written consent. 12. DISCLAIMER.THE CUSTOMER CONNECT PLATFORM CONTENT AND ITEMS PROVIDED BY CUSTOMER CONNECT HEREUNDER (INCLUDING, WITHOUT LIMITATION, ARE PROVIDED “AS IS” AND CUSTOMER CONNECT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF UNINTERRUPTED USE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 13. LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNITY OBLIGATIONS (SECTION 13) OR A MISAPPROPRIATION OF CUSTOMER CONNECT’S INTELLECTUAL PROPERTY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, AND REGARDLESS OF THE FORM OF ACTION (E.G., WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) NEITHER CUSTOMER CONNECT NOR ANY OF ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE TO MERCHANT OR TO ANY OTHER PARTY (INCLUDING MERCHANT CUSTOMERS) IN CONNECTION WITH ANY SUBJECT MATTER OF THIS AGREEMENT FOR (A) ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION), OR (B) ANY AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY MERCHANT TO CUSTOMER CONNECT HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY WHETHER OR NOT CUSTOMER CONNECT (OR ITS LICENSOR OR SUPPLIER, AS APPLICABLE) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 14. GENERAL PROVISIONS. The terms of this Agreement and any and all non-public information disclosed by Customer Connect to Merchant pursuant to this Agreement are confidential, and Merchant agrees not to disclose the terms of this Agreement or any such information to any third party, or use any such information other than for the purposes expressly set forth herein. Customer agrees that Customer Connect may use Customer’s name and logo to identify Customer as a customer of Customer Connect on Customer Connect’ website and in other advertising, marketing and promotional materials. Merchant may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without Customer Connect’ prior written consent, except to a successor to all or substantially all of its business or assets; Customer Connect may assign this Agreement and/or any of its rights and/or delegate any of its duties under this Agreement without consent. This Agreement contains the entire understanding of the parties with respect to the transactions and matters contemplated hereby, and supersedes all previous communications, understanding and agreements (whether oral or written).
15. GOVERNING LAW AND DISPUTES. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard for conflict of law principles. The parties irrevocably consent to the exclusive personal jurisdiction of the federal and state courts located in Dallas County, Texas. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys’ fees.