These Terms and Conditions (these “Terms”) govern how [CUSTOMER] (“you,” “your” or “Customer”) access and use the Services (as defined below) offered to you by Lightspeed NuORDER Inc. (formerly, NuORDER, Inc.) and its Affiliates (as defined below) worldwide (“NuORDER” “Company,” “we,” “us” or “our”). “Affiliate” means any entity that (i) directly or indirectly is Controlled by or Controls such party or (ii) is under common Control with such party. “Control” means the direct or indirect ownership of more than 50% of the shares or interests entitled to vote for the directors thereof or the equivalent, for so long as such entitlement subsists or equivalent power over management thereof.
For the purposes of these Terms, the “Services” means the online service delivered by NuORDER to you, as made available by NuORDER from time-to-time as specified in any Order Form (as defined below) including, without limitation, the Payment Services (where applicable). “Order Form” means collectively the order documents representing the subscription to the Services (and any subsequent modifications to the subscription agreed to between the parties in writing from time to time) that, upon execution, are incorporated in and made a part of these Terms from time to time.
The undersigned parties agree that these Terms shall constitute the master subscription agreement which shall govern the terms and conditions of any subsequent Order Form between the parties and all Order Forms shall refer to these Terms. Any new features, functions or tools added to the Services will also be governed by these Terms.
Subscription to the NuORDER Service. Subject to these Terms, including, without limitation, the payment of the Fees set forth in Section 4 and as applicable, Section 8(v) hereof, NuORDER hereby grants you a non-exclusive, revocable, non-sublicensable, non-transferable limited license to access and use the Services as described in the Order Form, in accordance with these Terms, solely for your internal business purposes and not for resale or to provide services to third parties. You are solely responsible for providing, at your own expense, all network access to the Services, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Services. Terms in an Order Form have precedence over conflicting terms in these Terms, but have applicability only to that particular Order Form.
Your Use of the NuORDER Service.
Access and Security Guidelines. You will use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify NuORDER promptly of any such unauthorized use. You are responsible for all actions taken under your account credentials, regardless of whether such actions are taken by you, your employees or a third party. You will not use your access to the NuORDER Service to: (a) harvest, collect, gather or assemble information or data regarding other NuORDER customers without their consent; (b) access or copy any data or information of other NuORDER customers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the NuORDER Service or the data contained therein; or (d) harass or interfere with another NuORDER customer’s use and enjoyment of the Services.
Customer Data. For the purposes of these Terms, “Customer Data” means any data, or information contained in any database, template or other similar document submitted by you or any of your Affiliates through the Services or provided by you or any of your Affiliates to NuORDER as part of or in relation to the Services, as well as any data generated through your use of the Services, including, without limitation, transaction data.
You are solely responsible for all Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation.
NuORDER represents, covenants, and warrants that NuORDER will use Customer Data only in compliance with your written instructions, including, without limitation, its privacy policies then in effect and all applicable laws. NuORDER will maintain and enforce reasonable safety and physical security procedures with respect to its access to and maintenance of Customer Data that are at least equal to industry standards.
You agree and acknowledge that NuORDER may collect, store and use Customer Data, and you grant NuORDER, for use in connection with the Services or for the provisioning, maintenance or improvement of the Services, a royalty-free, revocable, sublicensable, transferable, world-wide, nonexclusive right and license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, display, and/or otherwise exploit, the Customer Data in any media, form, format, or forum now known or hereafter developed during the Term.
You grant NuORDER a royalty-free, perpetual, irrevocable, sublicensable, transferable, world-wide, nonexclusive right and license to use de-identified and aggregated Customer Data in any media, form, format, or forum now known or hereafter developed for any business purpose.
NuORDER will maintain and enforce reasonable safety and physical security procedures with respect to all such aggregated and de-identified data that are at least equal to industry standards.
You agree to supply NuORDER with any and all relevant Customer Data, including but not limited to relevant product data within fourteen (14) days of the beginning of the Term.
Use Restrictions. You will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the Services; (b) knowingly interfere in any manner with the operation of the Services or any hardware and network used to operate the Services; (c) sublicense or transfer any of your rights under these Terms, except as otherwise provided herein or otherwise use the Services for the benefit of a third party other than an affiliate or to operate a service bureau; or (d) modify, copy or make derivative works based on any part of the NuORDER Service.
Additional Subscriptions. You shall have the right to purchase additional Services at the then current rates provided by NuORDER in accordance with an applicable Order Form.
Onboarding. NuORDER will provide you certain onboarding services in order to prepare you for your initial launch (the “Onboarding Services”). The Onboarding Services will commence only after NuORDER has (i) received a signed copy of an Order Form from you (ii) received payment for the initial invoice (iii) received all relevant product data, product imagery, Customer Data, and inventory information required by NuORDER, in its sole discretion, in order to perform the Onboarding Services (iv) received the online Merchant Application (v) schedules a kick-off call and (vi) scheduled customer training.
Fees and Payments. You will pay NuORDER the fees (“Fees”) set forth in and in accordance with the Order Form for the subscription to the Services and any support services provided by NuORDER under these Terms and in accordance with the terms of any applicable Statements of Work. Unless otherwise specified in the applicable Order Form, you shall pay each invoice within thirty (30) days of receipt. You will provide a written list of any disputed fees within ten (10) days of receipt of any invoice. The parties will cooperate in good faith to resolve any disputed parts of any invoice. Late payments on any invoice will accrue interest at a rate of 1 ½% per month, or the highest rate allowed by applicable law, whichever is lower. All Fees you owe in connection with these Terms are exclusive of, and you shall pay, all sales, use, excise and other taxes that may be levied upon you with respect to the receipt of the Services. NuORDER shall be entitled to revise the Fees by providing you with at least sixty (60) days prior written notice. You may elect, on any relevant Order Form, to maintain a credit card on file for payment of all invoices.
“Third-Party Services” are products, applications, services, software, networks, systems, directories, websites, databases and information from third parties, including from, that the Services link to, or which you may connect to or enable in conjunction with the Services. You may decide to enable, access or use any Third-Party Services (as defined above). You agree that access and use of such Third-Party Services shall be governed solely by the terms and conditions of such Third-Party Services, and that NuORDER is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third-Party Services, including, without limitation, their content or data practices (including with regards to Customer Data) or any interaction between you and the provider of such Third-Party Services. Any use by you of Third-Party Services shall be solely between you and the applicable third-party provider. You irrevocably waive any claim against NuORDER with respect to such Third-Party Services. NuORDER is not liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access or use of any such Third-Party Services, or your reliance on the privacy practices, data security processes or other policies of such Third-Party Services.
Confidential Information. For the purposes of these Terms, “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information disclosed under these Terms, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Your Confidential Information includes the Customer Data and information derived therefrom.
Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 6 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
Personally Identifiable Information. Should Customer Data contain information which includes, but is not limited to, personal financial or identifying information (“Personally Identifiable Information”), NuORDER will provide protections for such Personally Identifiable Information in accordance with accepted industry standards and as appropriate. Both parties hereto will be bound by and adhere to the provisions of NuORDER’s Data Processing Addendum, available at: https://www.nuorder.com/dpa/.
NuORDER Service and Technology. You acknowledge that NuORDER retains all right, title and interest in and to the Services and all software (including source code and object code), materials, formats, interfaces, information, data, content and NuORDER proprietary information and technology used by NuORDER to provide the Services (the “NuORDER Technology”), and that the NuORDER Technology is protected by intellectual property rights owned by or licensed to NuORDER. Other than as expressly set forth herein, no license or other rights in the NuORDER Technology are granted to you and all such rights are hereby expressly reserved by NuORDER.
Customer Data and Property. You retain all right, title and interest in and to the Customer Data, provided that NuORDER shall have the right to use Customer Data as set forth herein. In addition, you expressly reserve all right, title and interest in your property, including without limitation, Customer Property. “Customer Property” includes, without limitation, the following: (1) “Customer Technology” which means your business or technical information; and (2) “Customer Intellectual Property Rights” which means all of your owned inventions (whether or not prosecutable under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protectable under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, publicity rights, know-how, ideas (whether or not protectable under trade secret laws), and all other subject matter protectable under patent, copyright, moral right, mask work, trademark, trade secret, or other laws, including without limitation all new or useful art, combinations, discoveries, formulae, manufacturing techniques, technical developments, artwork, software, programming, applets, scripts, and designs; and (3) “Customer Trade Secrets” which means all other confidential, proprietary information relating to your business.
NuORDER Payment Processing Services. The following specific terms govern your access and use of NuORDER’s payments processing solutions (the “Payments Services”), These specific terms, together with the rest of the Terms, the Order Form and Merchant Application shall hereafter be referred to as the “Payments Terms”).
Payments Processing; Processor. The Payments Services enable you to accept card payments from your customers, manage retail transactions, and receive transactional reporting (i.e., batch reports and settlements) and other business-related services. Our role under these Payment Terms is to provide services that facilitate payment for the products you sell and integrate related transactional data with NuORDER’s software. As such, NuORDER is acting as a service provider that facilitates payments for the goods and services and not a processor. All card payment transactions submitted through the Payments Services are authorized, processed and settled by the applicable processor indicated in Schedule I (“Processor”). You are therefore required to enter into a separate agreement with the applicable Processor for the processing of such payment transactions. By using the Payments Services, you are also agreeing to be bound by the applicable processor agreement indicated in Schedule I (the “Processor Agreement”). In accordance with the foregoing, you understand and acknowledge that NuORDER and Processor share data in connection with the Payments Services.
Your Eligibility; Underwriting Inquiries. To be eligible to use the Payments Services, you must first submit the Merchant Application provided to you by NuORDER and be approved by NuORDER. As part of the application process, you authorize NuORDER to make business and personal credit inquiries (including, obtaining credit reports for your directors, officers, and principals), transaction-verification inquiries, and any other investigations considered necessary or desirable by NuORDER relating to these Payment Terms. You further authorize NuORDER to provide any information and documentation to Processor, including but not limited to, transaction information, product information, financial information, personal information, credit reports, and copies of all other materials in NuORDER’s possession. This authorization will remain in effect during your use of the Payments Services for any on-going inquiries made for risk-monitoring, compliance and account management purposes. NuORDER reserves the right to decline your application for any reason, in its sole and absolute discretion.
Your Account Setup; Changes. Once approved by NuORDER, you agree to promptly set up and enable the Payments Services. You agree that NuORDER and Processor shall be your primary provider of payments processing services and that other payments providers may not be available to you once your Payments Services account is enabled. The Payments Services will be provided in accordance with data formats, methods and protocols determined by NuORDER. NuORDER will not be required to perform any special programming to implement any other system, program, or procedure for you. NuORDER may make changes to the Payments Services at any time in its sole discretion, including but not limited to changes associated with technological developments, legislative or regulatory changes, or the introduction of new services and/or removal of existing ones. You will comply with all time deadlines, equipment and software maintenance and upgrade requirements NuORDER may reasonably impose from time to time.
Unauthorized Practices. You shall not present for processing or credit any transaction not originated as a result of a bona fides transaction between you and cardholder; or any transaction which you know or should know to be illegal, fraudulent or not authorized by the cardholder or the Scheme Rules (as defined below). NuORDER will refer to law enforcement all persons engaging in fraudulent or illegal transactions.
Fees. Processing and related fees will be netted out from settlement of card transactions submitted through the Payment Services. These fees are set out in the Order Form. In addition, NuORDER may deduct any other obligations owed under these Payment Terms from such settlement funds. NuORDER may suspend the Payments Services and stop releasing settlement funds until you pay all fees and other expenses owed or to become owed to NuORDER.
Additional Payments Services.
NuORDER shall provide you onboarding support and troubleshooting services to resolve issues with the Payments Services and your account with Processor.
Compliance with Rules, Policies. Law. You must comply with all applicable rules, regulations, policies, procedures, guidelines and other requirements issued by the Scheme Owners (i.e., Visa, MasterCard and American Express), the PCI Security Standards Council, LLC (“PCI Standards” which shall include, without limitation, the Payment Card Industry Data Security Standards and the Payment Application Data Security Standards) (collectively, “Scheme Rule(s)“). An abridged version of the Scheme Rules may be viewed at each of the respective Scheme Owner websites. NuORDER may, in its sole discretion, suspend your use of the Payments Services to investigate suspicious or unusual activity; NuORDER will have no liability for any losses you may attribute to this suspension. NuORDER may reverse payment card transactions it deems to violate these Payment Terms, the Scheme Rules, laws, or as otherwise required by the Scheme Owners, and you agree to reimburse NuORDER for any such reversals. If any of these Payment Terms conflict with the Scheme Rules, the Scheme Rules will take precedence. NuORDER may, without any liability to you whatsoever, take any action it believes is necessary to comply with any Scheme Rule or legal obligation.
Data Security. You will be solely responsible for the security, quality, accuracy, and adequacy of all transactions and information submitted to or through the Payments Services, and will maintain adequate audit controls to monitor the security, quality, maintenance, and delivery of such data. Without limiting the foregoing, you must at all times remain in compliance with PCI Standards and take all steps necessary to ensure that Customer Data (including but not limited to cardholder data and any other personally-identifiable or sensitive information) is not disclosed, misused, or subject to unauthorized access. If there is an actual or suspected breach of, or unauthorized access to, cardholder data or other personally-identifiable information, you must immediately: (a) notify NuORDER; (b) cooperate with NuORDER’s or Processor’s requests for information; (c) take any action designated by NuORDER or Processor to remedy and/or address the breach; (d) prevent further unauthorized access or use of such information; and (e) comply with all applicable laws, regulations and Scheme Rules.
Reserves. NuORDER may (or cause one of its third party service providers to) at any time at its sole discretion establish one or more reserve accounts (each a “Reserve Account”) in NuORDER’s name and (a) fund such Reserve Account with amounts due to you under these Terms (including but not limited to proceeds from processed transactions); (b) require you to deposit a specified amount into the Reserve Account which you will do within two days of NuORDER’s request; and/or (c) require your to cause your owner(s) to provide a personal guaranty to secure your obligations hereunder. The amount of the Reserve Account shall be the amount NuORDER determines, at its sole discretion, reasonable to cover all anticipated fees, chargebacks, returns, assessments, actual or anticipated liabilities. NuORDER may, without notice to you, set off against or recoup from the Reserve Account, any amounts due to you under these Terms. The Reserve Account will be held by NuORDER past the expiration of these Terms until the later of one hundred eighty (180) days after expiration of these Terms or such time as all actual and potential liabilities as associated with your transactions and use of the Payments Services have been fulfilled by you or otherwise expired. In addition to a Reserve Account, NuORDER may request other forms of security, such as a letter of credit, corporate guarantee and personal guarantees from your owners; You shall promptly comply with any such request.
Term. The “Term” means the term identified on an Order Form during which you have a subscription to the Services. The Term shall include the initial term as well as any renewal terms.
Renewal and Termination. These Terms will continue in effect until otherwise terminated in accordance with this Section 9. The Term will automatically renew for additional one year terms unless (i) otherwise indicated on the Order Form or (ii) either party provides the other with written notice of its election not to renew at least sixty (60) days prior to the anniversary date. NuORDER shall be entitled to revise the Fees by providing you prior written notice at least thirty (30) days prior to the end of the then current term. Either party may also terminate these Terms upon no less than thirty (30) days’ prior written notice to the other party for any reason provided, at such time, there are no outstanding Order Forms then currently in effect.
Suspension. NuORDER may suspend or terminate your access or use of the Services immediately and without notice, if you use the Service to (i) engage in an illegal or fraudulent activity (ii) cause immediate and material harm to others (iii) you are or become subject to any adverse legal or regulatory actions by governmental or non-governmental entities (iv) you fail to timely mitigate, remediate, or resolve risks identified by NuORDER (v) you fail to pay the Fees in a timely manner in accordance with Section 4 (vi) NuORDER is instructed to terminate your access to the Services by the Processor, Scheme Owners or any vendors used in connection with these Terms (vii) NuORDER determines that the provision of the Payments Services to you exposes NuORDER to substantial risk of losses or (viii) NuORDER determines that its association with you could negatively impact NuORDER’s reputation (ix) your business profile and activities differ from those identified in the Merchant Application; or (x) breach any provision of these Terms including but not limited to breach or violation of any Scheme Rules. NuORDER shall not be liable to you nor to any third party for any damages resulting from any suspension of the Services in accordance with this Section 8 or this Section 9.
Termination for Cause. Either party may terminate these Terms or any Order Form upon written notice if the other party (i) materially breaches these Terms and does not cure such breach (if curable) within thirty (30) days after written notice of such breach provided that such breach has not been cured within such (30) day period or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. NuORDER shall be permitted to terminate these Terms for cause in the event that you do not pay any undisputed Fees when due, more than two (2) times in any twelve (12) month period.
Non Exclusive Remedy. Except as expressly provided herein, termination of these Terms by either party will be a nonexclusive remedy for breach and subject to the terms herein, will be without prejudice to any other right or remedy of such party.
Survival. Upon the termination of this Agreement for any reason and subject to the restrictions set forth in Section, each party will return to the other all property (including any Confidential Information and Customer Data) of the other party in its possession or control. NuORDER agrees that upon any early termination of these Terms, NuORDER will allow you to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by NuORDER) for at least thirty (30) days after termination. Thereafter, NuORDER will remove access to or use of the Services will be immediately suspended. Sections discussing license restrictions, Fees and payment, confidentiality, compliance, data security, representations, indemnification, and limitation of liability shall survive termination of these Terms, along with any other provisions that are intended by their terms to survive.
Representations and Warranties; Disclaimer.
Each party represents that it has the requisite corporate authority to enter into these Terms and to grant the rights granted herein, and that there are no outstanding rights, agreements, grants, encumbrances, obligations or restrictions that would prevent such party from performing under these Terms.
Each party represents that it will comply with all applicable federal, state and local laws and regulations in the performance of its obligations hereunder.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OF MERCHANTABILITY, OR WARRANTY OF TITLE/NON- INFRINGEMENT.
By NuORDER. If any action is instituted by a third party against you based upon a claim that (i) the Services as delivered, infringe a registered patent, copyright, trade secret, trademark or other intellectual property right or (ii) NuORDER breached any representation or warranty set forth in Section 10 above, NuORDER shall defend such action at its own expense on your behalf and shall pay all damages attributable to such claim which are finally awarded against you or paid in settlement of such claim. With respect to a claim under Section 11i.(i), NuORDER may, at its option and expense, (a) procure for you the right to continue using the Services, (b) replace or modify the Services so that they no longer infringe but continue to provide comparable functionality, or (c) terminate these Terms and your access to the Services and, within thirty (30) days, refund all amounts previously paid by you for the Services. NuORDER shall have no liability to you for any infringement action to the extent such action arises out of the use of the Services (i) after they have been modified by you or by a third party without NuORDER’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by NuORDER.
By You. If any action is instituted by a third party against NuORDER (a) arising out of or relating to your unauthorized or improper use of the Services (including but not limited to, as applicable, chargebacks, reversals, refunds, fines, penalties, fees and attorneys’ fees, as well as any third party indemnity obligations incurred by NuORDER as a result of your acts or omissions); or (b) alleging that the Customer Data, or the use of Customer Data pursuant to these Terms, infringes the intellectual property or other rights of a third party, you will defend such action at your own expense on behalf of NuORDER and shall pay all damages attributable to such claim which are finally awarded against NuORDER or paid in settlement of such claim. You shall have no obligation under this Section for any claim or action that is described in Section 11i. that arises out of a breach of these Terms by NuORDER.
Conditions. Any party that is seeking to be indemnified under the provision of this Section 11 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any indemnifiable claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 11 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR: (A) ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) ANY AMOUNT WHICH, IN THE AGGREGATE, EXCEEDS THE AMOUNTS PAID BY YOU TO NUORDER HEREUNDER. IN NO EVENT SHALL NUORDER BE LIABLE TO YOU OR ANY OF ITS AFFILIATES FOR ANY DAMAGES TO YOUR COMPUTERS, HARDWARE, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY AND/OR FOR LOSS OF DATA, CONTENT, IMAGES, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ACCESSING OR USE OF, OR INABILITY TO USE, THE SERVICE.
THE PRECEDING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE LIMITATIONS APPLY EVEN IF NUORDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NONE OF THE FOREGOING SHALL APPLY TO ANY DAMAGES ARISING FROM YOUR USE OF OR RELATING TO THE BETA TECHNOLOGY, WHICH SHALL BE SUBJECT TO THE LIMITATION OF LIABILITY IN SECTION 12(vi).
Beta Technology. For evaluation and testing purposes only (“Beta Testing Project”), NuORDER may grant you a personal, non-exclusive, non-transferable, limited license to use certain technology or services (collectively, the “Beta Technology”). Your participation in the Beta Testing Project is completely voluntary. For the avoidance of doubt, the NuORDER Technology shall include the Beta Technology.
Your Obligations. You shall (i) test and evaluate the Beta Technology as requested by NuORDER, (ii) familiarize yourself with the Beta Technology information provided by NuORDER and only use or test the Beta Technology as directed, (iii) notify NuORDER of any and all functional flaws, errors, anomalies, and problems directly or indirectly associated with the Beta Technology known to, or discovered by you, (iv) respond to any and all reasonable inquiries, questionnaires, and other test documents submitted by NuORDER and (v) designate to NuORDER, in writing, an employee or representative who will serve as the single technical contact and who will be responsible for maintaining communication with NuORDER. In addition, you agree to bear all incidental costs (such as, costs for Internet and phone services, terminals, accessories, etc.) associated with its testing of the Beta Technology, unless otherwise agreed to in writing by both parties. You have the obligation to maintain backups of your own data. NuORDER shall have no obligation to transfer your data to any other NuORDER product or service.
Updates to Beta Technology. NuORDER has no obligation to develop or provide any updates or revisions to the Beta Technology, and NuORDER reserves the right to alter or adjust service specifications for the Beta Technology as it deems necessary or desirable.
Compensation. You will not, unless otherwise agreed to in writing, receive any payment, compensation or discount for participating in, or for providing any feedback, comments, evaluations, reports or any other services during a Beta Testing Project. You shall maintain backups of your own data.
Limitation of Liability for a Beta Testing Project. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF AND TO THE EXTENT THAT YOU PARTICIPATE IN A BETA TESTING PROJECT, IN NO EVENT WILL NUORDER’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THE BETA TESTING PROJECT EXCEED $1,000.00.
Assignment. Neither party may assign any rights or obligations arising under these terms, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign its right or obligations hereunder without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing limitation, these Terms shall inure to the benefit of and shall be binding upon the successors and assignees of the parties.
Governing Law and Venue. These terms will be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of laws. Any action or proceeding arising from or relating to these Terms must be brought in a federal or state court sitting in New York City, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If a dispute arising under these Terms results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.
Electronic Signatures. The person signing on your behalf (including an action of similar meaning or significance) represents and warrants to NuORDER that he or she has all required power and authority to bind you to these Terms. Such signatory also agrees that the electronic signatures provided online will be binding upon the signatory and will not be construed by a court of law to have any less effect than a standard ink or paper signature. You further acknowledge that you (i) are able to print a complete and legible copy of these Terms; (ii) are capable of opening, reading, printing, downloading and/or saving these Terms and, as applicable, the Processor Agreement prior to your acceptance; and (iii) have had reasonable opportunity to consult with appropriate professionals prior to electronically signing any of these Terms, as applicable.
Notices. Any notice or other communication required or permitted under these Terms and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested), or (c) sent by recognized air courier service.
Publicity and Marketing. You agree that, NuORDER may, without your consent, use your name and logo on NuORDER’s website and in NuORDER marketing material.
Entire Agreement. These Terms and the documents referred to herein represent the entire understanding and agreement of the parties, and supersede any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof.
Amendment. NuORDER reserves the right, at any time, to amend these Terms, including making changes to the Fees and scope of the Services. Your continued use of the Services after the effective date of any such changes will constitute your acceptance of and agreement to such changes.
Severability and Waiver. In the event that any provision of these Terms are held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of these Terms will remain in full force and effect. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 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.
Defined Terms. Any capitalized term used in these Terms but not otherwise defined shall have the meaning ascribed to it in the Processor Agreement.