Equipment Lease Agreement

EQUIPMENT LEASE AGREEMENT

This Equipment Lease Agreement (“Lease Agreement”) is being entered into by and between Merchant Lynx Services, Inc. and the Lessee identified in the signature panel of this Merchant Processing Application (“MPA”). In this Lease Agreement, the words “we”, “our” and “us” refer to Merchant Lynx Services, Inc. and its successors and assigns and the words “You” and “Your” refer to Lessee and its permitted successors and assigns.

Lessee hereby authorizes us or our designees, successors or assigns (hereinafter “Lessor”) to withdraw any amounts including any and all sales taxes now due or hereinafter imposed, owed by Lessee in conjunction with this Lease Agreement by initiating debit entries to the bank account designated by Lessee on the MPA (the “Settlement Account”). In the event of default of Lessee’s obligation hereunder, Lessee authorizes debit of its account for the full amount due under this Lease Agreement. Further, Lessee authorizes its financial institution to accept and to charge any debit entries initiated by Lessor to Lessee’s account. In the event that Lessor withdraws funds erroneously from Lessee’s account, Lessee authorizes Lessor to credit Lessee’s account for an amount not to exceed the original amount of the debit. This authorization is to remain in full force and effect until Lessor has received written notice from Lessee of its termination in such time and in such manner as to afford Lessor a reasonable opportunity to act. Lessee also authorizes Lessor from time to time to obtain investigative credit reports from a credit bureau or a credit agency concerning Lessee.

1. Equipment. We agree to lease to You and You agree to lease from us the equipment identified on the MPA or such other comparable equipment we provide You (the “Equipment”), according to the terms and conditions of this Lease Agreement. We are providing the Equipment to You “as is” and make no representations or warranties of any kind as to the suitability of the Equipment for any particular purpose. The term Equipment includes the Equipment initially deployed under the Lease Agreement and/or any additions, replacements, substitutions, or additions thereto.

2. Effective Date, Term and Interim Rent. (a). This Lease Agreement becomes effective on the earlier of the date we deliver any piece of Equipment to You (the “Delivery Date”) or acceptance by us. This Lease Agreement remains in effect until all of Your obligations and all of our obligations under it have been satisfied. We will deliver the Equipment to the site designated by You. (b) The term of this Lease Agreement begins on a date designated by us after receipt of all required documentation and acceptance by us (the “Commencement Date”), and continues for the number of months indicated on the MPA. THIS IS A NON-CANCELABLE LEASE FOR THE TERM INDICATED.(c) You agree to pay an Interim Lease Payment in the amount of one thirtieth (1/30th) of the monthly lease charge for each day from and including the Delivery Date until the date preceding the Commencement Date.(d) YOU ACKNOWLEDGE THAT THE EQUIPMENT AND/OR SOFTWARE YOU LEASE UNDER THIS LEASE AGREEMENT MAY NOT BE COMPATIBLE WITH ANOTHER PROCESSOR’S SYSTEMS AND THAT WE DO NOT HAVE ANY OBLIGATION TO MAKE SUCH SOFTWARE AND/OR EQUIPMENT COMPATIBLE IN THE EVENT THAT YOU ELECT TO USE ANOTHER SERVICE PROVIDER. UPON TERMINATION OF YOUR MERCHANT PROCESSING AGREEMENT, YOU ACKNOWLEDGE THAT YOU MAY NOT BE ABLE TO USE THE EQUIPMENT AND/OR SOFTWARE LEASED UNDER THIS LEASE AGREEMENT WITH SAID SERVICE PROVIDER.

3. Site Preparation. You will prepare the installation site(s) for the Equipment, including but not limited to the power supply circuits and phone lines, in conformance with the manufacturer’s and our specifications and will make the site(s) available to us by the confirmed shipping date.

4. Payment of Amounts Due. (a) The monthly lease charge is due and payable monthly, in advance. You agree to pay all assessed costs for delivery and installation of Equipment. (b) In addition to the monthly lease charge, You shall pay, or reimburse us for, amounts equal to any taxes or assessments on or arising out of this Lease Agreement or the Equipment, and related supplies or any services, use or activities hereunder, including without limitation, state and local sales, use, property, privilege and excise tax, tax preparation, compliance expenses, but exclusive of taxes based on our net income. Property taxes are calculated and charged based on the average of the estimated annual property taxes over the course of the term of the lease. You will also be charged an annual Tax Handling Fee, as set forth in the MPA and/or applicable Fee Schedule. (c) Your lease payments will be due despite dissatisfaction with the Equipment for any reason. (d) Whenever any payment is not made by You in full when due, You shall pay us as a late charge, an amount equal to ten percent of the amount due but no less than $5.00 for each month during which it remains unpaid (prorated for any partial month), but in no event more than the maximum amount permitted by law. You shall also pay to us an administrative charge of $10.00 for any debit we attempt to make against Your Settlement Account that is rejected, but in no event more than the maximum amount permitted by law. (e) In the event Your account is placed into collections for past due lease amounts, You agree that we can recover a collection expense charge of $50 for each aggregate payment requiring a collection effort, but in no event more than the maximum amount permitted by law.

5. Use and Return of Equipment; Insurance; Equipment Service Program. (a) You shall cause the Equipment to be operated by competent and qualified personnel in accordance with any operating instructions furnished by us or the manufacturer. You shall maintain the Equipment in good operating condition and protect it from deterioration, normal wear and tear expected. (b) You shall not permit any physical alteration or modification of the Equipment, or change the installation site of the Equipment, without our prior written consent. (c) You shall not create, incur, assume or allow to exist any consensually or judicially imposed liens or encumbrances on, or part with possession of, or sublease the Equipment without our prior written consent. (d) You shall comply with all governmental laws, rules and regulations relating to the use of the Equipment. You are also responsible for obtaining all permits required to operate the Equipment at Your facility. (e) We or our representatives may, at any time, enter Your premises for purposes of inspecting, examining or repairing the Equipment. (f) The Equipment shall remain our personal property and shall not under any circumstances be considered to be a fixture affixed to Your real estate. You shall permit us to affix suitable labels or stencils to the Equipment evidencing our ownership. (g) You shall keep the Equipment adequately insured against loss by fire, theft, and all other hazards and You shall provide proof of insurance. The loss, destruction, theft, or damage of or to the Equipment shall not relieve You from Your obligation to pay the full purchase price or total monthly lease charges hereunder. (h) You may choose not to insure the Equipment and participate in the Equipment Service Program. The Equipment Service Program provides a replacement of the Equipment for as long as You participate in the program during the Lease Term. The Equipment Service Program includes (i) free comparable replacement terminal (new or refurbished) in the event of a defect or malfunction (terminal defects or malfunctions caused by acts of God are not covered by this program), (ii) free shipping & handling on both the replacement terminal and return of defective terminal, (iii) free overnight shipping & handling on replacement terminal if requested by 3:00 pm ET (Monday-Thursday). If You don’t return Your damaged equipment, You will be charged the full purchase price of the replacement equipment sent to You. The monthly fee of $4.95 for the optional Equipment Service Program is a per terminal fee. You can choose to insure the Equipment and terminate Your participation in the program at any time by calling our Customer Service department.

6. Title to Equipment. The Equipment is, and shall at all times be and remain, our sole and exclusive property, and You shall have no right, title or interest in or to the Equipment except as expressly set forth in this Lease Agreement or otherwise agreed in writing. Except as expressly provided in Section 8, no transference of intellectual property rights is intended by or conferred in this Lease Agreement. You agree to execute and deliver to us any statement or instrument that we may request to confirm or evidence our ownership of the Equipment, and You irrevocably appoint us as Your attorney in-fact to execute and file the same in Your name and on Your behalf. If a court determines that the leasing Transaction contemplated by this Lease Agreement does not constitute a financing and is not a lease of the Equipment, then we shall be deemed to have a first lien security interest on the Equipment as of the date of this Lease Agreement, and You will execute such documentation as we may request to evidence such security interest. If this Lease Agreement is deemed a loan despite the intention of the parties, then in no contingency or event whatsoever shall interest deemed charged hereunder, however such interest may be characterized or computed, exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto.

7. Return or Purchase of Equipment at End of Lease Period. Upon the completion of Your lease term or any extension thereof, you will have the option to (a) return the Equipment to us, or (b) purchase the Equipment from us for its then fair market value, calculated as a percentage of the Revision 0914 Page 60 of 64 aggregate lease payments in accordance with the following: If the term of this Lease is forty-eight (48) months or more, the buyout option as a percentage of the aggregate lease payments shall be ten percent (10%). If the term of this lease is thirty-six (36) to forty-seven (47) months, the buyout option as a percentage of the aggregate lease payments shall be fifteen percent (15%). If the term of this lease is twenty-four (24) to thirty-five (35) months, the buyout option as a percentage of the aggregate lease payments shall be twenty percent (20%); or (c) after the final lease payment has been received by FDGL, the Agreement will revert to a month by month rental at the existing monthly lease payment. If Client does not want to continue to rent the Equipment, then Client will be obligated to provide FDGL with 30 day written notice to terminate and return the equipment to FDGL. If we terminate the lease pursuant to Section 1.11(b) due to a default by you, then you shall immediately return the Equipment to us no later than the tenth business day after termination, or remit to us the fair market value of the Equipment as determined in good faith by us. We may collect any amounts due to us under this Section 1.7 by debiting your bank account, and to the extent we are unable to obtain full satisfaction in this manner, you agree to pay the amounts owed to us promptly upon our request.

8. Disclosure of Information. You acknowledge that Merchant Lynx Services Inc. and First Data Merchant Services Corporation may share information among each other regarding Your account including business and personal credit information.

9. Software License. We retain all ownership and copyright interest in and to all computer software, related documentation, technology, know-how and processes embodied in or provided in connection with the Equipment other than those owned or licensed by the manufacturer of the Equipment (collectively “Software”), and You shall have only a nonexclusive license to use the Software in Your operation of the Equipment.

10. Limitation on Liability. We are not liable for any loss, damage or expense of any kind or nature caused directly or indirectly by the Equipment, including any damage or injury to persons or property caused by the Equipment. We are not liable for the use or maintenance of the Equipment, its failure to operate, any repairs or service to it, or by any interruption of service or loss of use of the Equipment or resulting loss of business. Our liability arising out of or in any way connected with this Lease Agreement shall not exceed the aggregate lease amount paid to us for the particular Equipment involved. In no event shall we be liable for any indirect, incidental, special or consequential damages. The remedies available to You under this Lease Agreement are Your sole and exclusive remedies.

11. Warranties. (a) Leased equipment is warranted against material defects for the life of the lease. This warranty does not include damage to the equipment resulting from accident or misuse or any other breach of the Lease Agreement. If the equipment should become defective within the warranty period, First Data Merchant Services Corporation will replace it free of charge (except that appropriate shipping charges may apply); (b) All warranties, express or implied, made to you or any other person are hereby disclaimed, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose, quiet enjoyment, or non-infringement; (c) You warrant that you will only use the Equipment for commercial purposes and will not use the Equipment for any household or personal purposes.

12. Indemnification. You shall indemnify and hold us harmless from and against any and all losses, liabilities, damages and expenses resulting from (a) the operation, use, condition, liens against, or return of the Equipment or (b) any breach by You of any of Your obligations hereunder, except to the extent any losses, liabilities, damages or expenses result from our gross negligence or willful misconduct.

13. Default; Remedies. (a) If any debit of Your Settlement Account initiated by us is rejected when due, or if You otherwise fail to pay us any amounts due hereunder when due, or if You default in any material respect in the performance or observance of any obligation or provision of this Lease Agreement or any agreement with any of our affiliates or joint ventures, any such event shall be a default hereunder. Without limiting the foregoing, any default by You under a Merchant Processing Agreement (“MPA”) with us or with an affiliate or joint venture to which we are a party will be treated as a default under this Lease Agreement. Such a default would include a default resulting from early termination of the MPA. (b) Upon the occurrence of any default, we may at our option, effective immediately without notice, either (i) terminate this lease and our future obligations under this Lease Agreement, repossess the Equipment and proceed in any lawful manner against You for collection of all charges that have accrued and are due and payable, or (ii) accelerate and declare immediately due and payable all monthly lease charges for the remainder of the applicable lease period together with the fair market value of the Equipment (as determined by us), not as a penalty but as liquidated damages for our loss of the bargain. Upon any such termination for default, we may proceed in any lawful manner to obtain satisfaction of the amounts owed to us and, if applicable, our recovery of the Equipment, including entering onto Your premises to recover the Equipment. In any case, You shall also be responsible for our costs of collection, court costs, as well as applicable shipping, repair and refurbishing costs of recovered Equipment. You agree that we shall be entitled to recover any amounts due to us under this Lease Agreement by charging Your Settlement Account or any other funds of yours that come into our possession or control, or within the possession or control of our affiliates or joint ventures, or by setting off amounts that You owe to us against any amounts we may owe to You, in any case without notifying You prior to doing so. Without limiting the foregoing, You agree that we are entitled to recover amounts owed to us under this Lease Agreement by obtaining directly from an affiliate or joint venture to which we are a party and with which You have entered into an MPA any funds held or available as security for payment under the terms of the MPA, including funds available under the “Reserve Account; Security Interest” section of the MPA, if applicable.

14. Assignment. You may not assign or transfer this Lease Agreement, by operation of law or otherwise, without our prior written consent. For purposes of this Lease Agreement, any transfer of voting control of You or Your parent shall be considered an assignment or transfer hereof. We will assign this Lease Agreement after its execution to First Data Global Leasing (FDGL), a business unit First Data Merchant Services Corporation. Upon any assignment, Merchant Lynx Services, Inc. shall be released from any further liability or obligation.

15. Lease Guaranty. No guarantor shall have any right of subrogation to any of our rights in the Equipment or this Lease Agreement or against You, and any such right of subrogation is hereby waived and released. All indebtedness that exists now or arises after the execution of this Lease Agreement between You and any guarantor is hereby subordinated to all of Your present and future obligations, and those of Your guarantor, to us, and no payment shall be made or accepted on such indebtedness due to You from a guarantor until the obligations due to us are paid and satisfied in full.

16. Governing Law; Venue; Miscellaneous. This Lease Agreement shall be governed by and will be construed in accordance with the laws of the State of New York (without applying its conflicts of laws principles). The exclusive venue for any actions or claims arising under or related to this Lease Agreement shall be in the appropriate state of federal court located in Suffolk County, New York. If any part of this Lease Agreement is not enforceable, the remaining provisions will remain valid and enforceable.

17. Notices. All notices must be in writing, and shall be given (a) if sent by mail, when received, and (b) if sent by courier, when delivered; if to You at the address appearing on the MPA, and if to us at 4000 Coral Ridge Drive, Coral Springs, Florida 33065 Attn: Lease Department. Customer Service toll free number 1-877-257-2094.

18. Entire Agreement. This Lease Agreement constitutes the entire Agreement between the parties with respect to the Equipment, supersedes any previous agreements and understandings and can be changed only by a written agreement signed by all parties. This Lease Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Lease Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Lease Agreement.

E-SIGN CONSENT AGREEMENT
A. Consent.

By signing this Addendum, you consent and agree that:

a. FDMS can provide disclosures required by law and other information about your legal rights and duties to you electronically.

b. Where required or requested, your electronic signature (via “clickthrough” or other method) on agreements and documents relating to the Services has the same effect as if you signed them in ink.

c. FDMS, its affiliates and its third party subcontractors and/or agents, can send all  communications, billing statements, amendments to this Addendum, notices, and other disclosures or information regarding the Services or your use of the Service or the Services
as defined herein and in the Agreement (collectively defined as “Disclosures”) to you  electronically (1) via e-mail, (2) by access to a web site that we designate in an e-mail notice we send to you at the time the information is available, (3) via SMS and text messages, or (4) to the extent permissible by law, by access to a website that we will generally designate in advance for such purpose.

d. If you want a paper copy, you can print a copy of the Disclosure or download the information for your records.

e. You agree that FDMS, its affiliates and its third party subcontractors and/or agents, may contact you via telephone, live or artificial, even if the number you provided is a cellular or wireless number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes.

f. This consent applies to all future Disclosures sent to you in connection with this Addendum, the Agreement, or your use of the Clover Service or the other Services as defined herein and in the Agreement.

B. Legal Effect. By consenting, you agree that electronic Disclosures have the same meaning and effect as if FDMS provided paper Disclosures to you. When FDMS sends you an email or other electronic notification alerting you that the Disclosure is available electronically and makes it available online, that shall have the same meaning and effect as if FDMS provided a paper Disclosure to you, whether or not you choose to view or print or download the Disclosure.

DATA PROTECTION TERMS AND CONDITIONS

2. DATA PROTECTION SERVICE.
If you elect the Data Protection Service, the terms and conditions set forth in this Section 2 shall apply (the “Data Protection Terms and Conditions”).

2.1. Definitions. Capitalized terms used herein shall have the meanings given to such terms as set forth in this Addendum or as defined elsewhere in the Agreement.

“Data Protection Service” or “Encryption and Tokenization” means those services described in Section 2.3 below.

“Multi-Pay Token” means the option to support businesses that need to submit a financial transaction in a card-not-present situation. These tokens are unique to each merchant that uses them and are stored in place of the primary account number (PAN). With these tokens, merchants can initiate new or recurring payments within their own environment instead of using the original card number.

Multi-Pay Token allows a Token Registration process a non-financial transaction to request a token to be placed in their payment page or “ewallet” for future or recurring payments. It is common for eCommerce merchants to ask their customers to register by providing profile information such as name, address, and phone number to the merchant website before or upon checkout.

“Registered PAN” means the processing of creating a Client specific Token for a PAN.

“Token/Tokenization” means a form of data substitution replacing sensitive payment card values with non-sensitive token, or random number, values. Post-authorization transactions are handled via Processors SafeProxy tokenization technology, which returns a token with the transaction’s authorization to the merchant. Tokens are shared universally with other merchants and cannot be used to initiate a financial transaction.

“Token Request” means your ability to obtain a Multi-Pay Token for credit card information only without an immediate authorization required which permits you to store a Multi-Pay Token for future transactions involving its customer.

2.2. Grant of License. Subject to the terms of this Addendum, Processor grants to you a non-transferable, non-assignable, nonexclusive, revocable sub-license during the term of this Addendum to use the Data Protection Service and the Data Protection Service Marks (as identified in the Data Protection Rules and Procedures) in the United States in accordance with this Addendum, including without limitation the Data Protection Rules and Procedures. Any rights with respect to the Data Protection Service not expressly granted by Processor in this Addendum are deemed withheld.

2.3. Services. The Data Protection Service applies only to Card transactions sent from you to us for authorization and settlement pursuant to the Agreement, and specifically excludes electronic check transactions. Processor will provide an encryption key to you to be used to encrypt (make unreadable) Card data during transport of the authorization request from your point of sale to Processor’s systems. During the period when the transaction is being transmitted to Processor for authorization processing, all historical transaction data, including Card number and full magnetic stripe data (track data and expiration date), will be encrypted. Processor will then generate or retrieve a unique, randomly generated token assigned to the Card number that will be returned to you in the authorization response (the “Token”).

2.4. Responsibilities of Client. You are responsible to comply with the following regarding your use of the Data Protection Service:

a) You are required to comply with the Card Organization Rules, including taking all steps required to comply with the Payment Card Industry Data Security Standards (PCI DSS). You must ensure that all third parties and software use by you in connection with your payment processing are compliant with PCI DSS. Use of the Data Protection Service will not, on its own, cause you to be compliant or eliminate your obligations to comply with PCI DSS or any other Card Organization Rule. You must demonstrate and maintain your current PCI DSS compliance certification.

Compliance must be validated either by a Qualified Security Assessor (QSA) with corresponding Report on Compliance (ROC) or by successful completion of the applicable PCI DSS Self-Assessment Questionnaire (SAQ) or Report on Compliance (ROC), as applicable, and if applicable to your business, passing quarterly network scans performed by an Approved Scan Vendor, all in accordance with Card Organization Rules and PCI DSS.

b) Use of the Data Protection Service is not a guarantee against an unauthorized breach of your point of sale systems or any facility where you process and/or store transaction data (collectively, “Merchant Systems”).

c) You must deploy the Data Protection Service (including implementing any upgrades to such service within a commercially reasonable period of time after receipt of such upgrades) throughout your Merchant Systems including replacing existing Card numbers on your Merchant Systems with Tokens. Full Card numbers must never be retained, whether in electronic form or hard copy.

d) You must use the Token in lieu of the Card number for ALL activities subsequent to receipt of the authorization response associated with the transaction, including without limitation, settlement processing, retrieval processing, chargeback and adjustment processing and transaction reviews.

e) If you send or receive batch files containing completed Card transaction information to/from Processor, you must use the service provided by Processor to enable such files to contain only Tokens or truncated information.

f) You must use truncated report viewing and data extract creation within reporting tools provided by Processor.

g) You are required to follow rules or procedures we may provide to you from time to time related to your use of the Data Protection Service (“Data Protection Rules and Procedures”). We will provide you with advance written notice of any such rules or procedures or changes to such rules or procedures.

h) You have no right, title or interest in or to the Data Protection Service, any related software, materials or documentation, or any derivative works thereof, and nothing in this Agreement assigns or transfers any such right, title or interest to you. You shall not take any action inconsistent with the stated title and ownership in this Addendum. You will not file any action, in any forum that challenges the ownership of the Data Protection Service, any related software, materials or documentation. Failure to comply with this provision will constitute a material breach of this Agreement. We have the right to immediately terminate this Addendum and your access to and use of the Data Protection Service in the event of a challenge by you. No additional rights are granted by implication, estoppel or otherwise.

i) You will not: (1) distribute, lease, license, sublicense or otherwise disseminate the Data Protection Service or any portion of it to any third party; (2) modify, enhance, translate, supplement, create derivative works from, reverse engineer, decompile or otherwise reduce to human-readable form the Data Protection Service or any portion of it; or (3) sell, license or otherwise distribute the Data Protection Service or any portion of it; (4) make any copies, or permit any copying, of the Data Protection Service or any portion of it; or (5) use any portion of the Data Protection Service as a standalone program or in any way independently from the Data Protection Service. If any portion of the Data Protection Service contains any copyright notice or any other legend denoting the proprietary interest of Processor or any third party, you will not remove, alter, modify, relocate or erase such notice or legend on such item.

j) You will only use the Data Protection Service for your internal business purposes in a manner consistent with this Addendum.

k) You will use only unaltered version(s) of the Data Protection Service and will not use, operate or combine the Data Protection Service or any related software, materials or documentation, or any derivative works thereof with other products, materials or services in a manner inconsistent with the uses contemplated in this Section 2.

l) You will promptly notify us of a breach of any terms of this Addendum.

2.5. Tokenization Limited Warranty. Processor warrants that the Token returned to you, as a result of using the Data Protection Service, cannot be used to initiate a financial sale transaction by an unauthorized entity/person outside the Merchant Systems. This warranty by Processor is referred to herein as the “Limited Warranty” and is subject to the terms and conditions set forth in this Addendum. To be eligible for the Limited Warranty, you must maintain a processing relationship with Processor and be in compliance with all the terms of the Agreement, including this Addendum, and any other agreement relating to Cards eligible for the Data Protection Service. Subject to the terms, conditions and limitations set forth in the Agreement, including the limitation of liability provisions, Processor agrees to indemnify and hold you harmless from direct damages, including third party claims, resulting from Processor’s breach of the Limited Warranty. The express remedy for Processor’s breach of the Limited Warranty set forth in this paragraph constitutes Processor’s entire liability and your sole and exclusive remedy for Processor’s breach of the Limited Warranty. The Limited Warranty is void if (i) you use the Data Protection Service in a manner not contemplated by, or in violation of, the Agreement, including this Addendum, or any other agreement relating to Cards eligible for the Data Protection Service or (ii) you are grossly negligent or engage in intentional misconduct.

2.6. Data Protection Disclaimer. IN ADDITION TO THE DISCLAIMERS SET FORTH IN THE AGREEMENT, THE FOLLOWING DISCLAIMER APPLIES TO THE DATA PROTECTION SERVICE: EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2.5 OF THIS ADDENDUM, PROCESSOR MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED WITH REGARD TO THE DATA PROTECTION SERVICE INCLUDING THE UNINTERRUPTED OR ERROR-FREE OPERATION OF THE DATA PROTECTION SERVICE.

2.7. Miscellaneous; Termination. Our obligations hereunder are subject to our ability to obtain and maintain any and all required governmental licenses, permits or other authorizations, and our ability to comply with any and all laws, regulations, orders and other governmental directives which may be imposed related to the Data Protection Service. We may terminate any or all of the Data Protection Service at any time for any reason.

TRANSARMOR SOLUTION SERVICES TERMS AND CONDITIONS

3. TRANSARMOR SOLUTION SERVICES.
If you elect the TransArmor Solution Services, the terms and conditions set forth in this Section 3 shall apply (the “TransArmor Solution Services Terms and Conditions”).

3.1. Definitions. Capitalized terms used herein shall have the meanings given to such terms as set forth in this Addendum or as defined elsewhere in the Agreement.

“Cardholder Information” means the data contained on a Card, or otherwise provided to Customer, that is required by the Card Organization or us in order to process, approve and/or settle a Card transaction;

“Card Organization Assessment” means a monetary assessment, fee, fine or penalty levied against you or us by a Card Organization as the result of (i) a Data Security Event or (ii) a security assessment conducted as the result of a Data Security Event; the Card Organizational Assessment shall not exceed the maximum monetary assessment, fee, fine or penalty permitted upon the occurrence of a “Data Security Event” by the applicable rules or agreement in effect as of the inception date of this Addendum for such Card Organization;

“Card Replacement Expenses” means the costs that the we or you are required to be paid by the Card Organization to replace compromised Cards as the result of (i) a Data Security Event or (ii) a security assessment conducted as the result of a Data Security Event;

“Data Security Event” means the actual or suspected unauthorized access to or use of Cardholder Information, arising out of your possession of or access to such Cardholder Information, which has been reported (i) to a Card Organization by you or us or (ii) to you or us by a Card Organization. All Security Event Expenses and Post Event Services Expenses resulting from the same, continuous, related or repeated event or which arise from the same, related or common nexus of facts, will be deemed to arise out of one Data Security Event;

“EMV Upgrade Costs” means cost to upgrade payment acceptance and processing hardware and software to enable you to accept and process EMV-enabled Card in a manner compliant with PCI Data Security Standards;

“Forensic Audit Expenses” means the costs of a security assessment conducted by a qualified security assessor approved by a Card Organization or PCI Security Standards Council to determine the cause and extent of a Data Security event;

“Liability Waiver” has the meaning as set forth in Section 3.5 below; “Pollutants” means, but are not limited to, any solid, liquid, gaseous, biological, radiological or thermal irritant or contaminant, including smoke, vapor, dust, fibers, mold, spores, fungi, germs, soot, fumes, asbestos, acids, alkalis, chemicals and waste. “Waste” includes, but is not limited to, materials to be recycled, reconditioned or reclaimed and nuclear materials; and

“Post Event Services Expenses” means reasonable fees and expenses incurred by us or you with our prior written consent, for any service specifically approved by us in writing, including without limitation, identity theft education and assistance and credit file monitoring. Such services must be provided by or on behalf of us or you within one (1) year following discovery of a Data Security Event to a Cardholder whose Cardholder Information is the subject of that Data Security Event for the primary purpose of mitigating the effects of such Data Security Event; “Program Year” means the period from June 1st through May 31st of each year; and

“Security Event Expenses” means Card Organization Assessments, Forensic Audit Expenses and Card Replacement Expenses. Security Event Expenses also includes EMV Upgrade Costs you agree to incur in lieu of a Card Organization Assessment.

“TransArmor Solution Services” or “TransArmor Solution Services Full Bundle” means those services described in Section 3.2 below.

3.2. TransArmor Solution Services. The following is a description of the TransArmor Solution Services available to you, subject to the terms of this Addendum. The TransArmor Solution Services are available during a calendar year only if you have less than 1 million Visa Card transactions and less than 1 million MasterCard Card transactions in such year.

3.2.1. Data Protection.

(a) The terms and provisions of Section 2 are incorporated in this Section 3.2.1. and made a part of this Section 3.

3.2.2. POS software monitor (“POS Software Monitor”) that provides a suite of monitoring, scanning and anti-virus software services to help protect point of sale computer systems;

3.2.3. PCI Rapid Comply (“PCI Rapid Comply Service”) which provides access to on-line PCI DSS Self-Assessment Questionnaires (SAQ) to validate PCI data standards. If an internet scan is required to complete the SAQ, you will have access to such scanning services;

3.2.4. POS hardware monitor (“POS Hardware Monitor”) which is a tool to assist in detecting physical terminal tampering and substitution, in accordance with additional terms and conditions provided to you upon downloading the POS Hardware Monitor; and

3.2.5. Liability warranty under which Processor will provide a waiver of your liability for card association expenses in the event of a security breach up to $100,000 per MID, and up to $500,000 aggregate for all MID’s, subject to terms and conditions set forth herein.

3.3. POS Software Monitor.

3.3.1. Software as a Service. Subject to the terms and conditions of this Addendum, we agree to provide you with the POS Software Monitor software application, including all updates, upgrades, new versions, and other enhancements or improvements thereto (the “Software”), to the extent the applicable fees are paid. You hereby authorize us or our vendors to begin scanning immediately upon your installation and/or deployment of the Software. The Software can only be used with certain computer operating systems. It is your responsibility to ensure that your  computer has the software in order to use the POS Software Monitor.

3.3.2. License Grant. Subject to the terms of this Addendum, we hereby grant to you a non-exclusive, non-transferable, nonassignable, revocable sub-license during the term of this Addendum to (i) access and use the Software solely for the benefit of you and only for systems owned or licensed by you; (ii) access and use the Software solely for its intended use; and (iii) use all applicable end user documentation.

3.3.3. Revocation of License. Upon expiration or termination of the Agreement or this Addendum for any reason, your license shall automatically be revoked. Furthermore, your right to use or access the Software shall cease.

3.3.4. IP & Other Data Retrieval, Transmission and Scanning.

(a) IP/Data Retrieval and Transmission. You hereby grant us or our vendors, the right to retrieve, transmit and monitor, for the intended purpose of the POS Software Monitor, any dynamic or static IP address and other data, including without limitation policy and system settings, point of sale system type, version, security event logs, or other related information, from any system with the POS Software Monitor loaded, deployed, or otherwise installed. You shall not, in any event or in any manner, impede the retrieval or transmission of such IP addresses or data. You hereby assume full responsibility for all damages and losses, of any nature, for all adverse results caused by your impeding the such retrieval and transmission of the IP addresses and data. You further agree to defend, indemnify and hold us harmless from any third party claim resulting from your impeding this process.

(b) IP Scanning & Log Monitoring. You acknowledge and understand that provisioning of the Software will enable static or dynamic IP addresses associated with the POS Software Monitor to be scanned. You further acknowledge that such IP addresses may be for external network devices which protect the POS Software Monitor host system. You hereby grant us and our vendors (i) the right to access and scan the IP addresses associated with the POS Software Monitor whether they are dynamic or static IP addresses (the “Authorized IP Addresses”), (ii) the right and authority to gather and transmit system data, including point of sale system information, to us or our vendors, and (iii) the right and authority to collect, transmit and review security event logs from the systems on which the Software is deployed. You further agree to provide us or our vendors reasonable assistance to enable such access and scanning. You understand that your failure to cooperate with the provision of services may significantly impair the services.

(c) Updates. You acknowledge and understand that the POS Software Monitor, in our sole discretion, can automatically install, download, and/or deploy updated and/or new components (“update process”), which may include a new version of the POS Software Monitor itself. You shall not, in any event or in any manner, impede the update process. You hereby assume full responsibility for all damages and losses, of any nature, for all adverse results caused by your impeding the update process. You agree to defend, indemnify and hold us harmless from any third party claim resulting from your impeding the update process.

(d) Authorized Disclosure. You acknowledge that, in conjunction with providing the Software, we may make certain “pass” or “fail” determinations regarding your online security and the electronic vulnerability of your IP addresses. You hereby authorize us or our vendors to share these “pass/fail” results, point of sale data, and other information collected during the scans to Card Organizations, Payment Card Industry Security Standards Council or any Card Organization sponsor bank.

3.4. PCI Rapid Comply Service.

3.4.1. License Grant. Subject to the terms of this Addendum, we hereby grant to you a non-exclusive, non-transferable, non-assignable revocable sub-license to (i) access and use the PCI Rapid Comply Service solely for the benefit of you and only on a single computer or computer network owned or licensed by you, (ii) access and use the PCI Rapid Comply Service solely for its intended use and (iii) use all applicable end user documentation. Upon expiration or termination of the Agreement or this Addendum for any reason, your license shall automatically be revoked. Furthermore, your right to use or access the PCI Rapid Comply Service shall cease.

3.4.2. Access. You acknowledge and agree that, although you will generally have access to the PCI Rapid Comply Service twenty-four hours per day, seven days per week (except in the event of a force majeure event), access to customer accounts and certain other services may not be available on a continuous basis and the PCI Rapid Comply Service will be subject to periodic downtime to permit, among other things, hardware and/or software maintenance to take place.

3.4.3. Data Disposal. From time to time, your account data or information, which is over 180 days old, may be deleted, purged or otherwise disposed. In addition, only a limited amount of your account data or information may be available online. Therefore, you are advised to print and download your account data and information, for record keeping purposes, on a periodic basis. You specifically agree that we are authorized to delete or dispose of your data or information and shall not be responsible for the deletion or disposal of your data or information from the PCI Rapid Comply Service. You assume full responsibility to backup and/or otherwise protect your data against loss, damage or destruction prior to and during all phases of the PCI Rapid Comply Service, and to take appropriate measures to respond to any potential adverse impact of the systems or disruption of service.

3.4.4. Copyrighted Material. The PCI Rapid Comply Service (including the website), contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, and graphics. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, whether copyrighted, trademarked or proprietary, or otherwise. You may download copyrighted material solely for your own internal use as contemplated under this Addendum. Except as expressly provided by copyright law, any copying, redistribution, or publication must be with the express permission of the owner. In any copying, the redistribution or publication of copyrighted material and any changes to or deletion of author attribution or copyright notice is expressly prohibited.

3.4.5. TransArmor Solution Services PCI Only. To the extent you elect the Data Protection Service set forth in Section 2 above but still want a PCI service, as set for on the first page above, you may separately elect to receive the PCI Rapid Comply Service.

3.5. Liability Waiver.

3.5.1. Data Security Event Expenses. Subject to the limitations, terms and conditions of this Section 3.5, we agree to waive liability (the “Liability Waiver”) that you have to us under the Agreement for Security Event Expenses and Post Event Services Expenses resulting from a Data Security Event first discovered by you or us while this Addendum is in effect.

Except for the Liability Waiver for expenses as specifically set forth in this Addendum, (i) you remain responsible to perform all agreements and obligations under the Agreement and this Addendum including, without limitation your obligation to comply with data security requirements and (ii) we waive no rights or remedies under your Agreement including, without limitation, our right to terminate the Agreement in the event of a Data Security Event.

3.5.2. Maximum Waiver Amount.

(a) The maximum amount of liability that we shall waive under the Agreement for all Security Event Expenses and Post Event Services Expenses arising out of or relating to the your Data Security Events first discovered during any Program Year regardless of the number of such Data Security Events is as follows:

(1) $100,000.00 maximum per each MID (merchant identification number) you have; and
(2) $500,000 aggregate maximum for all of your MID’s.

(b) The maximum amount of liability during any Program Year that we will waive under the Agreement for EMV Upgrade Costs is as follows:

(1) $10,000 maximum per each MID you have; and
(2) $25,000.00 aggregate maximum for all of your MID’s. For avoidance of doubt, the limit set forth in this Section 3.5.2(b) is part of and not in addition to the maximums set forth in Section 3.5.2(a).

3.6. Duties in the Event of a Data Security Breach.

3.6.1. You shall contact us immediately and, as directed by us, investigate, perform all remedial events and cooperate fully with us, in the event of a Data Security Event. In all events, you shall not take any action, or fail to take any action, without our prior written consent, which prejudices our rights hereunder.

3.6.2. Under all circumstances, you shall not admit any liability, assume any financial obligation, pay any money, or incur any expense in connection with any Data Security Event without our prior written consent. If you do so, it will be at your own expense.

3.7. Exclusions. The Liability Waiver hereunder shall not apply to:

3.7.1. Any Security Event Expenses and Post Event Services Expenses arising out of or resulting, directly or indirectly, from any dishonest, fraudulent, criminal or malicious act, error or omission, or any intentional or knowing violation of the law, if committed by you or your employees, officers, agents or director;

3.7.2. Any Security Event Expenses and Post Event Services Expenses arising out of or resulting from a claim, suit, action or proceeding against you that is brought by or on behalf of any federal, state or local government agency;

3.7.3. Any Data Security Event relating to you which has experienced a prior Data Security Event unless you were later certified as PCI compliant by a qualified security assessor;

3.7.4. Any Data Security Event arising out of your allowing any party (other than its employees or us) to hold or access Cardholder Information;

3.7.5. Any Data Security Event if Client: (i) is categorized by any Card Organization as “Level 1” or (ii) processes more than six million (6,000,000) Card transactions during the twelve month period prior to the date this Addendum became effective;

3.7.6. Any expenses, other than Security Event Expenses and Post Event Services Expenses, incurred by you arising out of or resulting, directly or indirectly, from a  Data Security Event, including without limitation, expenses incurred to bring you into compliance with the PCI Data Security Standard or any similar security standard;

3.7.7. Any Security Event Expenses, and Post Event Services Expenses arising out of or resulting, directly or indirectly, from physical injury, sickness, disease, disability, shock or mental anguish sustained by any person, including without limitation, required care, loss of services or death at any time resulting therefrom;

3.7.8. Any Security Event Expenses, and Post Event Services Expenses arising out of or resulting, directly or indirectly, from any of the following:

(a) fire, smoke, explosion, lightning, wind, water, flood, earthquake, volcanic eruption, tidal wave, landslide, hail, an act of God or any other physical event, however caused; or

(b) strikes or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations (whether declared or not), civil war, mutiny, civil commotion assuming the proportions of or amounting to a popular rising, military rising, insurrection, rebellion, revolution, military or usurped power, or any action taken to hinder or defend against these actions;

3.7.9. Any Security Event Expenses, and Post Event Services Expenses arising out of or resulting, directly or indirectly, from the presence of or the actual, alleged or threatened discharge, dispersal, release or escape of Pollutants, or any direction or request to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants, or in any way respond to or assess the effects of pollutants;

3.7.10. Your failure to comply with this Addendum or the Agreement in connection with a Data Security Event;

3.7.11. Any Data Security Event occurring before the effective date of this Addendum;

3.7.12. Any expenses incurred for, or as a result of, regularly scheduled, recurring or routine security assessments, regulatory examinations, inquiries or compliance activities;

3.7.13. Any fines or assessment levied against you that are not the direct result of a Data Security Event;

3.7.14. Any Data Security Event arising out of any software not within your control; provided, however, this exclusion shall not apply to a Data Security Event arising out of a virus, Trojan horse or other software used by a third party to obtain fraudulent access to data to your computer system or to collect data in transit to or from your computer system; or

3.7.15. Any Data Security Event arising out of a breach in a computer system in which you and other merchants, with no legal relationship to one another, have hosted accounts or share a common database, operating system or software applications.

3.8. Processor Technology and IP. All technology used by us or our licensors in connection with performing the TransArmor Solution Services including, software, portals, data processing systems (each of the foregoing, in object code and source code form), report templates, documentation and materials (collectively, “Processor Technology”), and any of our or our licensor’s patents, trademarks, copyrights, trade secrets and other intellectual property (“Processor IP”), and any derivative works of or modifications to the Processor Technology or Processor IP, is the sole and exclusive property of, and is valuable, confidential and proprietary to, Processor or its licensors. Except as otherwise expressly provided herein, you shall not acquire any rights in any Processor Technology or IP as a result of receiving the TransArmor Solution Services. You will not file any action, in any forum that challenges the ownership any of the TransArmor Solution Services, Processor Technology or Processor IP. Failure to comply with this provision will constitute a material breach of this Addendum. We have the right to immediately terminate your access to and use of the TransArmor Solution Services in the event of a challenge by you. No additional rights are granted by implication, estoppel or otherwise.

3.9. Data Collection. In the course of providing the TransArmor Solution Services, we may collect information relating to activities on your network (the “Data”) including, but not limited to, network configuration, TCP/IP packet headers and contents, log files, malicious codes, and Trojan horses. We retain the right to use the Data or aggregations thereof for any reasonable purpose.

3.10. Service Does Not Guarantee Compliance or Security.

3.10.1. You acknowledge and agree that your use of the TransArmor Solution Services does not guarantee your compliance with any of the rules or security standards established by the Card Organizations. You further acknowledge and agree that your use of the TransArmor Solution Services does not guarantee the security of your IP addresses or that your systems are secure from unauthorized access. You are responsible for establishing and maintaining your own security policies and procedures, and for compliance with the Card Organization Rules and security standards, including any obligation to notify a Card Organization and/or us of any suspected breach of your systems or any suspicious transactions or fraudulent activity. You are responsible for any fines or penalties imposed by any Card Organization any other expenses and liabilities pursuant to the Agreement less only the benefits to which you may be entitled under the Liability Waiver provisions of this Addendum. In the event of a suspected breach of your systems or any suspicious transactions or fraudulent activity, you authorize us to share the details of any questionnaire or compliance report with the Card Organizations, and grant us and our vendors the right to access and perform a scan of the IP addresses identified within your profile. You agree and authorize payment for the additional scan. You further agree to cooperate with an investigation into such matter to include complying with the Card Organization and us pursuant to the terms of the Agreement.

3.10.2. In addition to your obligations under the Agreement to comply with all laws, you are solely responsible for monitoring legal developments applicable to the operation of your business, interpreting applicable laws and regulations, determining the requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance program.

3.11. Scanning Authority; Scanning Obligations. You represent and warrant that you have full right, power, and authority to consent for the TransArmor Solution Services to scan for vulnerabilities the IP address and/or URL and/or domain names identified to us by you for scanning, whether electronically or by any other means, whether during initial enrollment or thereafter. If applicable, you shall obtain all consents and authorizations from any third parties necessary for us or our vendors to perform the TransArmor Solution Services, including, without limitation, third party datacenters, co-locations and hosts. We will not be required to execute agreements with any such third parties. You agree to defend, indemnify and hold us and our vendors harmless from any third party claim that such access was not authorized. You may use the TransArmor Solution Services and portals only to scan IP addresses, URLs and domain names owned by and registered to you. You understand that your failure to provide a complete list of and complete access to your IP addresses will significantly impair the scanning services and may result in incomplete or inaccurate results. You agree that all TransArmor Solution Services hereunder, including without limitation their functionality and contents, is confidential information, and Client’s use and/or access to the TransArmor Solution Services is subject to other data involves inherent risks, including, without limitation, risks related to system or network performance and availability, and data corruption. You assume full responsibility to backup and/or otherwise protect your data against loss, damage or destruction, and to take appropriate measures to respond to any potential adverse impact of the systems or disruption of service.

3.12. Scanning Risks. You acknowledge and understand that accessing, retrieving, transmitting, and scanning IP addresses and other data involves inherent risks, including, without limitation, risks related to system or network performance and availability, and data corruption. You assume full responsibility to backup and/or otherwise protect your data against loss, damage or destruction, and to take appropriate measures to respond to any potential adverse impact of the systems or disruption of service.

3.13. Use of TransArmor Solution Services and Portals. Your use of our or our vendors’ services, portals, reports, and scanning solution is subject to the following restrictions: (i) TransArmor Solution Services, portals, and reports may only be used for the stated purposes in this Addendum for your internal business purposes in accordance with all applicable laws (including any export control laws); (ii) TransArmor Solution Services and portals utilized for scanning may only scan IP addresses, URLs and domain names owned by and registered to you; and (iii) you shall limit access to the portals to only those employees and/or contractors who have an obligation of confidentiality with you and only to those who have a requirement for such access on a “need to know” basis and you shall be solely responsible for disabling portals accounts for those employees and/or contractors who no longer require access. You shall promptly notify us of any unauthorized use of the TransArmor Solution Services. You shall not (i) decompile, reverse engineer, disassemble, or otherwise derive the source code from any component of the TransArmor Solution Services or portals including the software embedded therein; (ii) modify, enhance, translate, alter, tamper with, upgrade or create derivatives works of the portals, software or documentation; (iii) distribute, lease, license, sell, assign, sublicense or otherwise disseminate or transfer its rights to use any portion of the TransArmor Solution Services to any third party or (iv) strip out or alter any trademark, service mark, copyright, patent, trade secret, ownership or any other proprietary or Intellectual Property notices, legends, warnings, markings or indications on or within any component of the portals, software or documentation, or attempt (i), (ii), (iii) and/or (iv) above. You shall notify us immediately if you know, suspect or have reason to know that you or anyone you have granted access to the TransArmor Solution Services violated any provision of this Addendum. Further you agree not to share your personal information (DDA, tax ID, MID, etc.) with a third party so they may gain access to the TransArmor Solution Services.

3.14. Disclaimers.

3.14.1.We do not make and hereby expressly disclaim all representations or warranties including, without limitation (i) that access to the TransArmor Solution Services will be uninterrupted or error free; (ii) that security breaches will not occur with respect to any information communicated through the TransArmor Solution Services, the Internet, or any common carrier communications facility; and (iii) as to the results that may or may not be obtained by you in connection with your use of the TransArmor Solution Services. WE DO NOT MAKE ANY WARRANTY, GUARANTEE OR REPRESENTATION (EITHER EXPRESS OR IMPLIED) OF ANY KIND INCLUDING, WITHOUT LIMITATION, THE MERCHANT ABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY SERVICES PROVIDED UNDER THIS ADDENDUM, AND ALL SUCH WARRANTIES, GUARANTEES AND REPRESEN T ATIONS ARE HEREBY EXPRESSLY DISCLAIMED. ALL SERVICES PROVIDED UNDER THIS ADDENDUM ARE PROVIDED ON AN “AS-IS, WITH ALL FAULTS”. USE OF THE SERVICES DOES NOT GUARANTY SECURITY OR PREVENT A SECURITY BREACH OR COMPROMISE. WE MAKE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED THAT PARTICIPATION AND/OR USE OF OUR SERVICES WILL DETECT EVERY VULNERABILITY ON YOUR SYSTEM, IF ANY, OR THAT OUR VULNERABILITY ASSESSMENTS, SUGGESTED SOLUTIONS OR ADVICE WILL BE ERROR-FREE OR COMPLETE. CUSTOMER AGREES THAT WE SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY OR USEFULNESS OF ANY INFORMATION PROVIDED BY US, OR FOR ANY USE OF SUCH INFORMATION.

3.14.2. You acknowledge and agree that we shall not be liable to you for any claims, damages, losses, obligations, costs or expenses or other liability arising directly or indirectly from or otherwise concerning (i) any termination, suspension, delay or disruption of service (including billing for a service) by the Internet, any common carrier or any third party service provider; (ii) any failure, disruption or malfunction of any of the TransArmor Solution Services, the Internet, or any communications network, facility or equipment beyond our or a third party’s reasonable control, whether or not attributable to one or more common carriers; (iii) your failed attempts to access the TransArmor Solution Services or to complete transactions via any of the TransArmor Solution Services; (iv) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you; (v) any damages resulting from any delays and/or losses arising in connection with the TransArmor Solution Services provided hereunder; or (vi) any loss of or inability to access data or information stored or generated by TransArmor Solution Services.

3.15. Limitation of Liability. Notwithstanding anything to the contrary in this Addendum or elsewhere, our cumulative liability to you for any claim related to this Addendum, and your use of the Services (whether arising from tort, statute, contract or otherwise) shall in all cases be limited to the actual, direct and proven out-of-pocket losses, damages or expenses suffered or incurred by you. Furthermore, our cumulative liability to you shall not, in any case, exceed the TransArmor Solution Fees paid to us by you during the 12 month period immediately preceding the date the event giving rise to the claim occurred. Notwithstanding anything to the contrary in this Addendum or elsewhere, in no event shall we be liable to you or to any third party for any indirect, special, incidental, consequential, punitive or unproven losses, damages or expenses of any kind, including, without limitation, lost profits or loss of goodwill arising from the use or inability to use the Services including, without limitation, the inability to access your data or information generated or stored on the Services, and regardless of whether such claim arises in tort, in contract or by statute or regulation, each of which is hereby excluded, regardless of whether such damages were foreseeable or whether you have been advised of the possibility of such damages.

The parties acknowledge and agree that the provisions and limitations of this Section 3.15 are of the essence of this Addendum and that absent them, the parties would not have agreed to this Addendum.

3.16. Third Party Beneficiary. We have been granted the right by FDMS to sublicense the Data Protection Service and TransArmor Solution Services Marks to you. As such, while we are providing the Data Protection Service and the TransArmor Solution Services to you, FDMS is a third-party beneficiary of the provisions set forth in Section 2 and Section 3 hereof, with the right to receive all benefits that we receive under Section 2 and Section 3 hereof and the right to initiate enforcement of the terms of this Addendum, including applicable terms of the Agreement against you at FDMS’s sole discretion, including its successors or assigns. Except as may be provided in this Addendum or the Agreement, a person who is not a party to this Addendum shall have no rights or remedies under this Addendum.

3.17. Miscellaneous; Termination. Our obligations hereunder are subject to our ability to obtain and maintain any and all required governmental licenses, permits or other authorizations, and our ability to comply with any and all laws, regulations, orders and other governmental directives which may be imposed related to the TransArmor Solution Services. We may terminate any or all of the TransArmor Solution Services at any time for any reason.

GENERAL TERMS AND CONDITIONS

4. FEES.

4.1 Service Fees. You shall pay the fees for Services as set forth on the first page of this Addendum.

5. NOTICES.

We may provide notices and other information regarding the Services to you via the method(s) described in the Agreement or, with respect to Clover Service, in the E-Sign Consent Agreement set forth above.

6. AMENDMENT.

We have the right to change or add to the terms of this Addendum at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services with notice provided to you as set forth in the Notices section of this Addendum. Any use of the Services after our publication of any such changes shall constitute your acceptance of this Agreement as modified.

7. THIRD PARTY BENEFICIARIES.

FDMS’s Affiliates and any Persons FDMS uses in providing the Clover Service are intended third party beneficiaries of this Addendum, and each of them may enforce its provisions as if it was a party hereto. Except as expressly in this provided in this Addendum, nothing in this Addendum is intended to confer upon any Persons any rights or remedies, and the parties do not intend for any Persons to be third-party beneficiaries of this Addendum.