Terms and Conditions

These Merchant Terms and Conditions (these “Terms”) apply to Merchant’s access to and use of: (1) our digital payment solution (the “Mobile Payment Solution”) that enables users (“Customers”) of the Socially Mobile applicable (the “App”) to open, review, and pay their bar or restaurant tab with their compatible mobile device; (2) our Socimo™ customer relationship management solution (“Socimo”); (3) certain software related to the Digital Payment Solution that we make available to Merchant from time to time (the “Socially Mobile Software”); and (4) any other services, technology, content, data, and features made available by us pursuant to these Terms (together with the Digital Payment Solution and the Socially Mobile Software, the “Socially Mobile Platform”). In these Terms, “Socially Mobile,” “we,” “us,” and “our” refer to ATX Innovation, Inc. (dba Socially Mobile) and our affiliates, successors, and assigns, and “Merchant” refers to any user of the Socially Mobile Platform. Socially Mobile and Merchant are individually referred to in these Terms as a “Party” and collectively as the “Parties.”

By accessing or using the Socially Mobile Platform in any way, Merchant agrees to be bound by these Terms. If Merchant does not agree to all the terms and conditions of these Terms, Merchant may not access or use the Socially Mobile Platform. These Terms are incorporated by reference in any Merchant Agreement between Merchant and Socially Mobile for the Socially Mobile Platform that refers to or links to these Terms (the “Merchant Agreement”). In the event of a conflict between these Terms and the Merchant Agreement, the Merchant Agreement will control.

In conjunction with Merchant’s access to and use of the Socially Mobile Platform, Merchant may be subject to additional terms, rules, policies, and conditions, including, but not limited to, purchase orders, platform specifications, and end user license agreements for the Socially Mobile Platform (“Additional Terms”), which are hereby incorporated by reference in these Terms. In the event of a conflict between these Terms and any Additional Terms, the Additional Terms will control, unless otherwise agreed in writing by the Parties.

We may, without prior notice or liability to Merchant, modify the Socially Mobile Platform by adding or removing features and functionalities. We may also revise these Terms from time to time in our sole discretion, subject to Applicable Law (as defined below). When we revise these Terms, we will notify Merchant via email, the Socially Mobile Platform, our website, or any other method we deem to be reasonable in the circumstances. Except as otherwise expressly stated by us, all changes to these Terms are effective immediately and apply to Merchant’s access to and use of the Socially Mobile Platform thereafter. Merchant is free to decide whether or not to accept a revised version of these Terms, but accepting these Terms, as revised, is required for Merchant to continue accessing or using the Socially Mobile Platform. If Merchant does not agree to these Terms or any revised version of these Terms, Merchant’s sole recourse is to terminate its access to or use of the Socially Mobile Platform. Except as otherwise expressly stated by us, Merchant’s access to and use of the Socially Mobile Platform are subject to, and constitute Merchant’s acceptance of, the version of these Terms in effect at the time of Merchant’s access or use. For purposes of these Terms, “Applicable Law” means any law, rule, regulation, ordinance, code, or order to which a Party may be subject or under which a Party may exercise rights.

  1. REQUIREMENTS.

In order to access or use the Socially Mobile Platform, Merchant must: (i) be an entity formed or incorporated in the United States or an individual sole proprietor 18 years of age or older residing in the United States; (ii) accept, agree to, and comply with these Terms; and (iii) provide all information requested by us, such as Merchant’s legal name, email address, mailing address, phone number, and such other information as we may request from time to time. Merchant represents and warrants that all such information Merchant provides to us from time to time is truthful, accurate, current, and complete. Merchant must immediately notify us upon cessation or suspension of its business operations or intent to do so.

  1. LIMITED LICENSE.

2.1              Subject to, and except as otherwise expressly provided by, these Terms, Socially Mobile hereby grants Merchant a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right and license to access and use the Socially Mobile Platform, including all updates, upgrades, and modifications thereto made available by Socially Mobile, via download or otherwise, from time to time, solely for its intended purposes in accordance with these Terms and any Additional Terms. Merchant must follow Socially Mobile’s instructions with respect to the Socially Mobile Platform. Socially Mobile may host elements of the Socially Mobile Platform using its own infrastructure or it may engage a third party to host the Socially Mobile Platform on its behalf. Merchant is responsible for making all arrangements necessary for Merchant to access and use the Socially Mobile Platform, including obtaining and maintaining hardware, software, communications equipment, and network infrastructure and for paying all third-party fees incurred to access and use the Socially Mobile Platform.

2.2              To enable Merchant’s access to and use of the Socially Mobile Platform, Merchant hereby grants Socially Mobile access to Merchant’s point-of-sale (“POS”) system so that Socially Mobile may install, update, and maintain the Socially Mobile Software on Merchant’s POS system, including any installation performed by any software installer program or application provided by Socially Mobile. Merchant agrees to provide any and all assistance to Socially Mobile and its employees and representatives to complete such installation, updates, and maintenance.

2.3              Merchant acknowledges that (i) the Socially Mobile Platform may contain other software or components that are either owned by a third party or in the public domain (“Third-Party Software”), and (ii) Socially Mobile has no proprietary interest in Third-Party Software and, as such, cannot grant Merchant a license to use Third-Party Software. Socially Mobile will provide a listing of Third-Party Software to Merchant upon Merchant’s written request. Merchant’s rights in Third-Party Software are governed by and subject to the terms and conditions set forth in the applicable licenses for Third-Party Software. Merchant acknowledges and agrees to fully comply with such terms and conditions. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN SUCH TERMS AND CONDITIONS, THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS APPLY TO SOCIALLY MOBILE AND ITS LICENSORS WITH RESPECT TO ANY THIRD-PARTY SOFTWARE. SOCIALLY MOBILE IS NOT OBLIGATED TO PROVIDE SUPPORT SERVICES FOR THIRD-PARTY SOFTWARE UNLESS EXPRESSLY AGREED TO IN WRITING BY SOCIALLY MOBILE.

  1. FEES AND TAXES.

3.1              In consideration for Merchant’s access to and use of the Socially Mobile Platform, Merchant agrees to pay the fees, if any, specified in the Merchant Agreement (“Fees”). All Fees are due and payable in U.S. dollars and are non-refundable.

3.2              All Fees are exclusive of any applicable sales, excise, use, or similar taxes. Merchant must pay all such taxes either directly or to Socially Mobile or as otherwise required by Applicable Law. Merchant acknowledges and agrees that it is responsible for determining, paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with Merchant’s access to and use of the Socially Mobile Platform. We are not responsible for determining whether Merchant owes taxes in connection with Merchant’s access to or use of the Socially Mobile Platform or for collecting, reporting, or remitting taxes arising from Merchant’s access to or use of the Socially Mobile Platform, except for our own income taxes. Merchant agrees to reimburse and indemnify Socially Mobile for any taxes, penalties, and interest assessed by any taxing authority regarding amounts owed by Merchant in connection with these Terms.

 

PLATFORM SUPPORT, MAINTENANCE, AVAILABILITY, AND TRAINING.

4.1              Socially Mobile will provide Merchant with reasonable support to help resolve issues related to the Socially Mobile Platform. Merchant is solely responsible for providing customer service for any and all issues related to the goods and services it provides Customers. Merchant must promptly: (i) refer all inquiries and complaints from Customers concerning the App and the Mobile Payment Solution; (ii) provide any written documentation related to such inquiries and complaints to Socially Mobile; and (iii) cooperate with Socially Mobile to resolve Customers’ inquiries and complaints to the extent necessary.

4.2              We may need to carry out routine or urgent maintenance for the Socially Mobile Platform from time to time. We will use commercially reasonable efforts to inform Merchant of any downtime and to restore the Socially Mobile Platform as soon as reasonably practicable; provided, however, that Socially Mobile will not be liable if all or any part of the Socially Mobile Platform is unavailable at any time or for a period of time for any reason.

4.3              Socially Mobile, in its discretion, may provide written and/or electronic materials to Merchant to train its staff on the Socially Mobile Platform. In addition, Socially Mobile, in its discretion, and subject to Merchant’s approval, may provide in-person, telephonic, and online training on the Socially Mobile Platform to Merchant’s staff.

 

ADDITIONAL TERMS FOR THE MOBILE PAYMENT SOLUTION.

5.1              Merchant must accept Customers’ payments using the Digital Payment Solution in accordance with Socially Mobile’s standard operating instructions and these Terms.

5.2              Merchant must provide Customers with transaction receipts as required by Card Network Rules and Applicable Law. For purposes of these Terms, “Card Network Rules” mean the bylaws, rules, and other published operational and technical requirements of any payment network (e.g., Visa®, MasterCard®, American Express®, and Discover®) applicable to the Socially Mobile Platform, Merchant’s acceptance of payment cards, and a Party’s obligations under these Terms.

5.3              Merchant may not impose any additional restrictions, conditions, or fees on Customers’ use of the App or the Digital Payment Solution or engage in any practices that discriminate against or discourage Customers’ use of the App.

5.4              The Digital Payment Solution may allow Merchant to select a minimum and/or default tip or gratuity that will be presented to Customers in the App. Merchant is solely responsible for determining its tax withholding and payment obligations relating to gratuities added to or included in Customers’ payments.

5.5              Merchant acknowledges and agrees that Socially Mobile: (i) is not a financial institution and does not provide banking or payment processing services; (ii) is not a party to the payment transactions performed by Merchant and Customers using the Socially Mobile Platform; (iii) does not hold or transmit any funds belonging to Customers or Merchants; (iv) is not liable for delays in delivery of Customers’ payments for any reason, including, but not limited to, as a result of the actions or inactions any banks, processors, card networks, or other third parties; (v) is not liable for any Customers’ payments that are not completed because: (a) a Customer’s payment account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of Customer’s payment account; (b) a Customer has not provided Socially Mobile with correct or updated payment account information; or (c) a Customer’s payment account has expired.

5.6              Socially Mobile is not responsible for any overcharges, chargebacks, reversals, or other payment disputes relating to payment transactions facilitated by the Socially Mobile Platform. Socially Mobile will use commercially reasonable efforts to assist Merchant in disputing and resolving any chargebacks or reversals of Customers’ payments.

5.7              Merchant acknowledges that promotional offer campaigns facilitated through social media platforms (“Offers”) are subject to certain limitations established by Socially Mobile and other third parties, from time to time, including, but not limited to, Customers’ eligibility for, and redemption of, Offers.

 

INTELLECTUAL PROPERTY RIGHTS.

6.1              Merchant acknowledges and agrees that the Socially Mobile Platform is protected by copyright, trademark, patent, and other intellectual property laws. Except as expressly provided in these Terms, Socially Mobile does not grant Merchant any licenses, express or implied, to the Socially Mobile Platform or any of Socially Mobile’s other intellectual property. Socially Mobile retains all right, title, and interest in and to the Socially Mobile Platform, including any updates, upgrades, and modifications thereto, and any associated patents, trademarks, copyrights, mask work rights, trade secrets, and other intellectual property rights.

6.2              Except as expressly provided by these Terms or with Socially Mobile’s prior written consent, Merchant may not use, modify, disassemble, decompile, reverse engineer, reproduce, distribute, rent, sell, license, publish, display, download, transmit, or otherwise exploit the Socially Mobile Platform in any form by any means. Without limiting the foregoing, Merchant may not, and may not permit any third party to, (i) use any robot, spider, scraper, or other automatic or manual device, process, or means to access or copy the Socially Mobile Platform; (ii) take any action that imposes or may impose (in our sole determination) an unreasonable or disproportionately large load on the Socially Mobile Platform or our infrastructure; (iii) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Socially Mobile Platform; (iv) rent, lease, copy, provide access to, or sublicense any portion of the Socially Mobile Platform to a third party; (v) use any portion of the Socially Mobile Platform to provide, or incorporate any portion of the Socially Mobile Platform into, any product or service provided to a third party; (vi) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble, or otherwise attempt to derive the source code of the Socially Mobile Platform; (vii) remove, obscure, or alter any copyright notice, trademarks, logos, trade names, or other proprietary rights notices contained in the Socially Mobile Platform; or (viii) use the Socially Mobile Platform in violation of these Terms or any Applicable Law. We may, but are not obligated to, monitor Merchant’s use of the Socially Mobile Platform.

6.3              Merchant may submit comments, information, questions, data, ideas, description of processes, or other information to Socially Mobile from time to time (collectively, “Feedback”). Socially Mobile may freely use, copy, disclose, license, distribute, and otherwise exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise.

MARKETING AND PUBLICITY.

7.1              Merchant hereby grants Socially Mobile a non-exclusive, non-transferable, limited, and revocable license to use Merchant’s name, logos, trademarks, service marks, and graphics in general listings of Merchants in the App, on Socially Mobile’s website and social media accounts, and in other print and electronic marketing materials solely to provide information about the Mobile Payment Solution, subject to any usage guidelines provided by Merchant.

7.2              Socially Mobile hereby grants Merchant a non-exclusive, non-transferable, limited, and revocable license to use Socially Mobile’s name, logos, trademarks, service marks, and graphics on its website and other marketing materials solely to provide information about the Digital Payment Solution to Customers, subject to any usage guidelines provided by Socially Mobile.

7.3              Except as otherwise expressly permitted by these Terms, neither Party may use, copy, or modify any of the other Party’s name, logos, trademarks, service marks, and graphics without such other Party’s prior written approval. Each Party acknowledges that the other Party’s name, logos, trademarks, service marks, and graphics are and will remain the exclusive property of such other Party.

7.4              Each Party must cease using the other Party’s name, logos, trademarks, service marks, and graphics upon termination of these Terms or if otherwise directed to do so by such other Party.

 

POS DATA.

To the maximum extent permitted by Applicable Law, Merchant hereby grants Socially Mobile and its affiliates, successors, and assigns an irrevocable, non-exclusive, transferable, and assignable license and right to collect certain transaction data from Merchant’s POS system (“POS Data”) as long as Merchant accesses or uses the Socially Mobile Platform. POS Data includes information about the venue, SKU-level data on items purchased by Merchant’s customers, amounts paid by Merchant’s customers, and metadata on payment methods used by Merchant’s customers (such as payment card type, payment card issuer, and the last four digits and expiration date of the payment card). To the maximum extent permitted by Applicable Law, Merchant also hereby grants Socially Mobile and its affiliates, successors, and assigns an irrevocable, non-exclusive, transferable, assignable, and perpetual license and right to use and retain the POS Data for any lawful purpose, including, but not limited to, the following purposes: (i) as necessary to provide, maintain, and improve the Socially Mobile Platform; (ii) to provide Offers to Customers; and (iii) to perform analytics for third parties.

 

PLATFORM DATA.

9.1              Socially Mobile exclusively owns all right, title, and interest in and to any and all data (other than the POS Data) that is provided to or obtained by Socially Mobile in connection with the App and the Socially Mobile Platform (“Platform Data”), including, but not limited to, data regarding Customers and their use of the App, and, subject to Socially Mobile’s Privacy Policy and Applicable Law, may use Platform Data for any lawful purpose. To the extent Merchant receives Platform Data in connection with its access to or use of the Socially Mobile Platform, Merchant may only use Platform Data as necessary to perform its obligations under these Terms, except as expressly provided in Section 9.2 or as otherwise expressly required by Applicable Law. Without limiting the foregoing, Merchant may not use Platform Data for any other purpose, including, but not limited to, marketing to or communicating with Customers other than through the Socially Mobile Platform.

9.2              Notwithstanding Section 9.1 and except as otherwise provided in any applicable Additional Terms, Socially Mobile, in its sole discretion, may from time to time grant, convey, sell, or otherwise transfer to Merchant a non-exclusive limited license to use certain aggregate, statistical, and/or anonymous data derived from Platform Data.

9.3              Merchant must: (i) restrict disclosure of Platform Data to its employees, officers, directors, and agents solely on a “need to know” basis in accordance with these Terms; (ii) advise its employees, officers, directors, and agents of their confidentiality obligations; (iii) require its employees, officers, directors, and agents to protect and restrict the use of Platform Data; (iv) use the same degree of care to protect Platform Data as it uses to safeguard its own confidential information of similar importance, but in no event less than a reasonable degree of care; and (v) establish procedural, physical, and electronic safeguards to prevent the compromise or unauthorized disclosure of Platform Data. In the event there is a breach of security of Merchant that results or may result in unauthorized disclosure of Platform Data, Merchant must immediately notify Socially Mobile of such breach, the nature of such breach, and the corrective action taken to respond to such breach and must take all steps, at its own expense, to immediately limit, stop, or otherwise remedy such misappropriation, disclosure, or use. Merchant is solely responsible for any Platform Data in its possession or under its control and must bear the risk of loss resulting from its possession, storage, transmission, and use of such Platform Data.

9.4              Within 30 days of the termination of these Terms or at any time upon Socially Mobile’s request, Merchant must return to Socially Mobile (or destroy if so directed by Socially Mobile) all Platform Data in its possession or in the possession of any employee or agent of Merchant, as directed by Socially Mobile.

 

REPRESENTATIONS AND WARRANTIES.

In addition to any other representations and warranties set forth in these Terms, Merchant represents and warrants to Socially Mobile that: (i) if applicable, Merchant is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation or incorporation; (ii) if applicable, Merchant is qualified to transact business and in good standing in each jurisdiction in which it operates; (iii) Merchant has all requisite right, power, and authority to accept and agree to these Terms and perform its obligations and grant the rights, licenses, and authorizations granted by Merchant hereunder; (iv) Merchant’s employees, officers, directors, and agents accessing or using the Socially Mobile Platform are duly authorized to access and use the Socially Mobile Platform and legally bind Merchant to these Terms; and (v) Merchant and all of its employees, officers, directors, and agents will comply with these Terms, all Applicable Law, and applicable payment industry standards, including, but not limited to, the PCI DSS and Card Network Rules, as such standards may be amended from time to time, in the performance of Merchant’s obligations and exercise of Merchant’s rights under these Terms.

 

SUSPENSION AND TERMINATION

11.1          We may, in our sole discretion, suspend, limit, or terminate Merchant’s access to or use of the Socially Mobile Platform for any reason, without notice or liability to Merchant. Merchant may stop using the Socially Mobile Platform by providing 30 days’ prior written notice via email to [email protected] Upon the termination of these Terms, Merchant must cease all use of the Socially Mobile Platform.

11.2          Termination of Merchant’s access to and use of the Socially Mobile Platform will not affect any of Socially Mobile’s rights or Merchant’s obligations arising under these Terms prior to such termination. Provisions of these Terms that, by their nature, should survive termination of Merchant’s access to and use of the Socially Mobile Platform, including, but not limited to, Sections 2.3, 3, 5.5, 5.6, 6, 8, 9, 10, 12, 13, 14, and 15 will survive such termination.

 

DISCLAIMERS.

12.1          TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOCIALLY MOBILE PLATFORM IS PROVIDED TO MERCHANT HEREUNDER STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND SOCIALLY MOBILE HEREBY DISCLAIMS ANY AND ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, ACCURACY OF DATA, NON-INFRINGEMENT, NON-INTERFERENCE, AND FITNESS FOR A PARTICULAR PURPOSE.

12.2          WITHOUT LIMITING THE FOREGOING, SOCIALLY MOBILE MAKES NO WARRANTY THAT (I) THE SOCIALLY MOBILE PLATFORM WILL MEET MERCHANT’S REQUIREMENTS; (II) THE SOCIALLY MOBILE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SOCIALLY MOBILE PLATFORM WILL BE ACCURATE OR RELIABLE; OR (IV) ANY ERRORS IN THE SOCIALLY MOBILE PLATFORM WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SOCIALLY MOBILE OR ANY OF OUR AUTHORIZED REPRESENTATIVES WILL CREATE ANY WARRANTY.

12.3          MERCHANT HEREBY RELEASES SOCIALLY MOBILE (AND OUR EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS) FROM ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE BETWEEN MERCHANT AND A CUSTOMER.

 

LIMITATION OF LIABILITY.

13.1          TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SOCIALLY MOBILE, OUR AFFILIATES, OR OUR OR THEIR EMPLOYEES, OFFICERS, DIRECTORS, OR AGENTS BE LIABLE TO MERCHANT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, INCLUDING DAMAGES OR COSTS INCURRED AS A RESULT OF A LOSS OF TIME, SAVINGS, PROPERTY, PROFITS, BUSINESS, CONTRACTS, REVENUE, ANTICIPATED SAVINGS, DATA, OR GOODWILL, ARISING OUT OF OR RELATED TO THESE TERMS OR THE SOCIALLY MOBILE PLATFORM, EVEN IF SOCIALLY MOBILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.2          NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SOCIALLY MOBILE’S AGGREGATE LIABILITY TO MERCHANT FOR ANY CLAIM WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION WILL BE LIMITED TO THE GREATER OF: (I) THE TOTAL AMOUNT OF FEES (IF ANY) ACTUALLY PAID BY MERCHANT UNDER THESE TERMS FOR THE 12-MONTH PERIOD PRIOR TO WHEN THE CLAIM WAS BROUGHT or (II) $1,000.

13.3          IN ADDITION TO AND WITHOUT LIMITING ANY OF THE FOREGOING, SOCIALLY MOBILE WILL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF TERRORISM, LABOR CONDITIONS, POWER FAILURES, INTERNET DISTURBANCES, OR SERVICES OR SYSTEMS CONTROLLED BY THIRD PARTIES.

13.4          THE PARTIES AGREE THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS IN THESE TERMS ARE ESSENTIAL ELEMENTS OF THESE TERMS AND REPRESENT A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES. In particular, MERCHANT understands that we would be unable to provide THE SOCIALLY MOBILE PLATFORM to MERCHANT except on these terms and agreeS that these Terms will survive and apply even if any limited remedy specified in these Terms is found to have failed its essential purpose.

 

INDEMNITY.

Merchant must indemnify, hold harmless, and (at our request) defend Socially Mobile, our affiliates, and our and their respective employees, officers, directors, and agents from and against all damages, claims, suits, costs, fines, penalties, liabilities, and expenses (including reasonable attorneys’ fees) that arise from a third party’s claim arising out of or on account of or resulting from: (i) Merchant’s breach or alleged breach of these Terms; (ii) violation of Applicable Law, PCI DSS, or the Card Network Rules by Merchant or its employees, officers, directors, or agents; (iii) infringement of any third-party intellectual property rights by Merchant or its employees, officers, directors, or agents; (iv) Merchant’s tax obligations; and (v) the gross negligence, fraud, or willful misconduct of Merchant or its employees, officers, directors, or agents or any other actions or omissions resulting in liability to us. Socially Mobile reserves the right to assume the exclusive defense and control of any matter subject to indemnification by Merchant, in which event Merchant will cooperate in asserting any available defenses.

 

GENERAL.

15.1          Third-Party Payment Processors and POS Companies.

Certain third parties, including, without limitation, Merchant’s payment processor or POS system vendor, may present these Terms and a Merchant Agreement to Merchant for Merchant’s review and acceptance. Such third parties are independent contractors and have no power to bind Socially Mobile or incur obligations on its behalf.

15.2          Export.

Merchant may not export or re-export any Socially Mobile Software or other technology or materials related to the Socially Mobile Platform, either directly or indirectly, without Socially Mobile’s prior written consent and any required license from the appropriate governmental agency.

15.3          Audit.

Upon reasonable notice to Merchant, Socially Mobile may, either itself or through an third-party auditor, enter Merchant’s premises during Merchant’s normal business hours to inspect and audit Merchant’s POS system, computer systems, network, and records solely to verify Merchant’s compliance with these Terms.

15.4          Governing Law and Jurisdiction.

The validity, interpretation, construction, and performance of these Terms will be governed by the laws of the State of California, without giving effect to the principles of conflict of laws and without reference to rules of arbitration or statutory arbitration. The federal and state courts located in Los Angeles County, California will be the exclusive venue for any dispute or claim between the Parties, or against any agent, employee, successor, or assign thereof, arising out of or in connection with these Terms, and the Parties hereby consent to the personal jurisdiction of those courts for such purposes.

15.5          Relationship of Parties.

No agency, joint venture, partnership, trust, or employment relationship is created between Socially Mobile and Merchant by way of these Terms. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

15.6          Assignment.

Merchant may not transfer or assign these Terms or any license set forth herein, in whole or in part, without Socially Mobile’s prior written consent. Socially Mobile may assign these Terms without restriction and without Merchant’s prior consent. Any attempted transfer or assignment by Merchant without our prior written consent will be null and void. These Terms will be binding on all permitted assignees.

15.7          Severability.

The invalidity or unenforceability of any provision of these Terms will not affect the validity of these Terms as a whole, and any such provision should be enforced by authorities, and reconstructed if need be, to apply to the maximum extent allowable under Applicable Law.

15.8          Waiver.

The failure by us to enforce at any time any of the provisions of these Terms, to exercise any election or option provided herein, to require at any time Merchant’s performance of any of the provisions herein, or to enforce our rights under these Terms or Applicable Law will not in any way be construed as a waiver of such provisions or rights. The express waiver by us of any provision, condition, or requirement of these Terms will not constitute a waiver of any future obligation to comply with such provision, condition, or requirement.

15.9          Entire Agreement.

These Terms, including the Merchant Agreement and any Additional Terms, constitute the entire agreement between Socially Mobile and Merchant, and supersede and replace any prior representations, agreements, negotiations, and understandings between Socially Mobile and Merchant, whether written or oral, relating to the Socially Mobile Platform. No modification or amendment to these Terms will be binding upon Socially Mobile unless approved in writing by a duly authorized representative of Socially Mobile; provided, however, that, no representative may modify these Terms by email message.

15.10      Notices.

Socially Mobile will send all notices and other communications regarding the Socially Mobile Platform to Merchant at the email address Merchant provided in the Merchant Agreement, as may be updated by Merchant from time to time by contacting us at [email protected] or (866) 626-8045. Merchant will be considered to have received a notice from us under these Terms when we send it to the email address we have in our records for Merchant or when we mail such notice to the mailing address provided in the Merchant Agreement, as may be updated by Merchant from time to time by emailing [email protected] Except as otherwise provided in these Terms, all notices to Socially Mobile that are intended to have a legal effect must be in writing and delivered either (i) in person at the following address: 1049 Havenhurst Drive, Suite 10, Los Angeles, California 90046or (ii) by a means evidenced by a delivery receipt, to the following address: 1049 Havenhurst Drive, Suite 10, Los Angeles, California 90046.  All such notices are deemed effective upon documented receipt by us.