Terms and Conditions

Merchant understands and acknowledges that:

One “day” of deployment services shall be equal to 2 hours of service. Deployment services shall be delivered anytime between the hours of 7am and 9pm local time, Monday - Friday (“TSG POS Standard Hours”). Any additional hours per day, or hours outside of TSG POS Standard Hours, shall require Merchant to pay additional fees at the then current rate for the total amount of hours and number of technicians necessary to complete implementation. TSG POS does not provide cabling services, and the estimates provided above do not include cabling costs. If cabling is required TSG POS may recommend a local partner. After scheduling service appointments (menu review, installation, training or support), Merchant shall have until 7 days before the scheduled date to cancel the service appointment. Canceling within 7 days of the service appointment may result in Merchant being assessed a service fee for each day canceled. The Equipment you are receiving is leased and must always be kept in good working order. If you are returning the equipment in less 90 days, the equipment must be returned in like new condition. If any device is returned in scratched/dented condition, you will be charges a restocking fee of 50% of the retail value of the equipment. If it is returned broken you will be charged the full retail value of the damaged piece of equipment. 

These Terms & Conditions are incorporated into and made a part of this Agreement and govern Merchant’s use of the TSG POS services (the “Services”), including those Services set forth on the Quote, and other Services that Merchant may use from time to time. Capitalized terms used herein without definition shall have the meaning set forth on the Service Agreement Signature Page. Each of Provider and Merchant may be referred to herein individually as a “Party” and collectively, the “Parties.”  

The Parties hereby agree as follows:  

(1) Services; Provider will provide the Services subject to the terms and conditions of this Agreement, including, without limitation, these Terms & Conditions. Certain Service may be performed by Provider’s affiliates (each an “Affiliate”), including, without limitation, TSG POS, Inc. (“TSG POS”), TSG POS Processing Services or other third-party service providers. Merchant will comply with any and all federal, state, or local laws, rules, regulations, ordinances, regulatory guidance applicable to its business (“Applicable Laws”) at all times during the term of this Agreement. Neither Provider nor any Affiliate will be responsible or liable for Merchant’s compliance with Applicable Laws and makes no representation that the Services are designed for compliance therewith, except as otherwise expressly agreed by the Parties in writing. Merchant understands and agrees that: (a) for periods prior to the date as of which this Agreement is executed (as set forth on the Agreement Signature Page), Provider shall not be responsible for assisting with Merchant’s fulfillment of any of its tax obligations, including, without limitation, tax filings or tax payments, nor shall Provider be liable for any information submitted by third parties on Merchant’s behalf with respect to such obligations, and that Merchant shall consult its prior provider for assistance with such obligations, (b) neither Provider nor any Affiliate is rendering, or shall render, legal, tax, accounting, or investment advice in connection with the Services, and (c) neither Provider nor any Affiliate will be deemed a fiduciary of Merchant or any of Merchant’s affiliates, including any employer or joint employer of Merchant’s employees. Provider (or any other third-party provider of the Services) perform reasonable maintenance on software or systems used to deliver the Services from time to time, which may result in service interruptions, delays, errors or bugs. Provider will not be liable for any such interruptions, delays, errors or bugs. To the extent that Merchant takes any action under this Agreement on behalf of any other distinct legal entity, all of Merchant’s obligations hereunder apply equally as though such obligations were being performed on its own behalf, and Merchant shall be responsible to Provider for all acts and omissions of each such its representatives or employees. Any obligations of Merchant applicable to Merchant’s employees, shall apply equally to the employees of any representative, including, without limitation, those obligations of Merchant set forth.For the avoidance of doubt, none of Merchant’s rights or Provider’s obligations under this Agreement shall transfer.  

(2) Merchant Contacts; Merchant Information.Merchant will designate contacts that are authorized to (a) act on behalf of Merchant with respect to this Agreement, (b) provide Provider with all information and directives requested by Provider or necessary for Provider to perform the Services or any of its obligations, or to exercise its rights under, this Agreement, including, without limitation, information about Merchant’s (or any Sub-merchant’s) business or employees (collectively “Merchant Information”), and (c) cause Merchant to take any corporate action necessary for Merchant or Provider, as applicable, to carry out the purposes of this Agreement. Merchant shall immediately notify Provider in writing (which may be through email) upon the termination of any such designated contact’s role as a designated contact, whether by termination of employment or otherwise, and Provider shall not be responsible for any actions taken by a contact prior to Provider’s receipt of such notification. Merchant shall timely provide to Provider all Merchant Information requested by Provider to perform the Services, including, without limitation, any documents necessary to verify the identity of Merchant pursuant to Applicable Laws. Merchant, and not Provider (or any Affiliates), will be responsible for any delayed remittance of wages, taxes, garnishments, processing fees or other Fees (as defined below), or any fines or penalties incurred as a result of Merchant’s failure to provide Provider with Merchant Information on a timely basis. Merchant authorizes Provider to act on Merchant Information as necessary for Provider to perform its obligations or exercise its rights under this Agreement. Merchant represents, warrants, and covenants that all Merchant Information shall be true, accurate, and complete at all times, and acknowledges and agrees that Provider (i) may rely on Merchant Information for any and all purposes under this Agreement, (ii) will not be responsible for errors that result from Provider’s reliance on Merchant Information, (iii) has no obligation to verify or ensure the accuracy of any Merchant Information, and (iv) may share and discuss Merchant Information with designated Merchant contacts. Merchant will review all reports and documents provided or made available to Merchant by Provider and shall inform Provider of any inaccuracies within three (3) business days of the date as of which each such report or document has been provided to Merchant. Merchant represents and warrants that it has completed a commercially reasonable background check on all of its employees that will receive payroll funds in connection with this Agreement and that no such employees appear on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons list.  

(3) Fees Payment of Fees. (a) Merchant will pay Provider: (i) fees for each applicable Service as set forth in the Quote, (ii) fees for any additional Services which Provider may provide to Merchant from time to time as mutually agreed to by the Parties in writing, including but not limited to additional fees referenced and (iii) all other amounts due under this Agreement (collectively, “Fees”), in each case as such Fees may be modified as set forth in this Section 3. All Fees are non-cancelable and non-refundable. Fees will be due and payable as set forth on invoices which may be provided to Merchant via Provider’s software platform through which Merchant accesses the Services, through a designated Merchant contact or authorized representative, or to an address or email address on file with Provider. Provider will commence billing Merchant for Fees for Services on the earlier of: 1) the first date as of when Merchant successfully posts for processing using the Services (the “Start Date”); provided, however, that if Merchant uses Services before the Start Date, or does not start processing or take card payments during a given month, Fees incurred during the applicable month will be collected on the last business day or end of day depending on Merchants plan of such month; or 2) on the Contract Start Date referenced on the Order Form (the “Contract Start Date”). Provider may, and Merchant authorizes and instructs Provider to, ACH debit any and all Fees from Merchant’s bank account set forth on the ACH Authorization Form, as such bank account may be updated from time to time (the “Bank Account”). Merchant acknowledges and agrees that Provider may ACH debit from the Bank Account any Fees then due and owed at such time as when Provider ACH debits Remittance Amounts (as defined below) from the Bank Account in connection with the Services; provided, however, that Provider’s failure to ACH debit Fees from the Bank Account shall not relieve Merchant of the obligation to pay such Fees. Merchant represents, warrants, and covenants that amounts equal to any Fees owed under this Agreement will be available on deposit in the Bank Account in collectible form and in sufficient amount when due. Except as otherwise set forth in this Section 3 or elsewhere in this Agreement (including, without limitation, in Section 6 with respect to the Early Termination Fee), all other Fees shall be due on the last day of the month incurred or end of day depending on Merchants plan. Any billing dispute initiated by Merchant shall be in good faith and shall be evidenced to Provider in writing within one (1) day of the date invoiced.  

(b) Taxes; Security Deposit. All Fees are exclusive of associated taxes. Provider is not obligated to determine whether taxes apply, nor will Provider calculate, collect, report, or remit any taxes arising from Merchant’s use of the Services to any tax authority. Merchant is solely responsible for payment of, and Merchant agrees to pay, all applicable taxes regardless of whether such tax amounts are listed on the Order Form or in the Quote. Provider may, in its sole discretion, require a security deposit from Merchant, and Merchant waives any right to interest that may accrue on any amounts.   

(c) Fee Changes. Fees are subject to change upon thirty (30) days prior written notification to Merchant. Such notice will include the effective date of the change(s). Merchant’s continued use of the Services subsequent to any change in Fees will be deemed acceptance of such change unless Merchant terminates this Agreement prior to the effective date of such change and ceases all access to and use of the Services. If Merchant does not accept such Fee change, then Merchant may terminate this Agreement by providing Provider with written notice prior to the effective date of such Fee change, and in such event the Early Termination Fee under Section 6 shall not apply, and Merchant shall only be liable to Provider for the payment of Fees for Services provided through the date of Merchant’s notice of termination.  

(4) Payroll. In connection with Payroll Processing Services. TSG POS offers this service through a partnering company. Merchant must signup directly.

(5) Non-Payment. In the event that sufficient funds are not available in the Bank Account, or Merchant otherwise fails to make sufficient funds available, on (a) the due date of any Fees that are not subject to a good-faith billing dispute evidenced in writing by Merchant to Provider at the time such Fees were billed, or (b) the applicable Funding Deadline with respect to any Remittance Amounts, in each case to cover the full amount of any such Fees owed or Remittance Amounts paid or payable (as applicable), then Provider may take action to collect all amounts due, including, but limited to: (i) re-initiating of the applicable ACH debit and assessing insufficient funds fees, (ii) except to the extent prohibited by law, offsetting any Remittance Amounts held by Provider that are designated by Merchant for future tax payments, (iii) to the extent that Merchant is a party to a Merchant Agreement with TSG POS, and except to the extent expressly prohibited by such Merchant Agreement, offsetting any Net Sales Proceeds, as such term is defined in the Payment Processing Terms of such Merchant Agreement, which such payment Merchant hereby authorizes and instructs TSG POS (or its payment processor) to make in connection with this Section 5, and/or (iv) exercising any other rights and remedies available to it under this Agreement including, without limitation, termination of this Agreement without penalty. Merchant, and not Provider, will remain liable for full payment of all Remittance Amounts, including any amounts offset under Section 5(ii) above.  Merchant will be responsible for the costs of collection (including without limitation attorney’s fees and court costs) incurred by Provider with regard to any Fees or Remittance Amounts not timely paid, including in connection with Provider’s exercise of its rights to payment under this Agreement.  

(6) Termination. (a) This Agreement shall be effective beginning on the date that it is signed by the Merchant (the “Effective Date”).  The “Initial Term” of this Agreement as set forth in the Order Form (the “Initial Term”) shall commence on the Effective Date. Following the Initial Term, this Agreement shall automatically renew for additional successive periods of one-year each (each a “Renewal Term”), unless this Agreement is terminated as of the end of the Initial Term or a Renewal Term, as applicable, by written notice to that effect given by either Party to the other Party not less than ninety (90) days prior to the end of the Initial Term or the applicable Renewal Term, as the case may be.   

(b) Termination for Breach. TSG POS may terminate this Agreement with Merchant without written notice. By specifying any failure or default in the performance of any provisions of the material terms and conditions.

(c) Termination for Other Causes. TSG POS may immediately terminate this Agreement without notice if: (i) the Merchant shall fail to pay its debts in the ordinary course of its business or shall admit in writing its inability to pay its debts generally; (ii) Make a general assignment for the benefit of creditors; (iii) if any proceeding shall be instituted seeking to adjudicate bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of such Merchant or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property; or (iv) Take any corporate action to authorize any of the foregoing actions. Provider may terminate this Agreement, or may elect to suspend Merchant's access to the Services immediately, with notification to Merchant, if, in Provider’s sole, good faith, commercially reasonable determination, (A) a material adverse change has occurred in the financial condition of Merchant; (B) Merchant has failed to have sufficient funds available in the Bank Account equal to the applicable Remittance Amounts on any Funding Deadline; (C) any federal, state, or local legislation, regulatory action, or judicial decision adversely affects Provider’s interests under this Agreement in any material respect; or (D) Merchant has ceased using Provider as its provider of Services.  Provider may, in its commercially reasonable discretion, suspend Merchant's access to any or all Services immediately, without prior notice to Merchant, in the event of any actual or suspected issues that could potentially cause a material violation of this Agreement or law (including Applicable Laws), or may impose a potential security threat, data breach, fraud, or other crime. Provider may terminate this Agreement to the extent that any such issue has not resolved within thirty (30) days of the date first discovered by Provider. Merchant may be billed for any suspended Services during the period which such Services were suspended to the extent the issue giving rise to such suspension occurred due to circumstances due to, and not due to any negligence or willful misconduct exhibited by, Merchant, any of its employees, or agents (including any of its third-party service providers). Provider may terminate this Agreement without penalty to the extent expressly set forth in other Sections of this Agreement.

(d) Termination Without Cause; Early Termination Fee.  If (i) Merchant terminates this Agreement for any reason in under three months or (ii) if Provider terminates this Agreement under 3 months then, in addition to any other rights or remedies that Provider may have at law or in equity in connection with its termination thereunder, Provider may charge Merchant an early termination fee equal to $500 or the highest monthly dollar amount of Fees for Services (including software Fees and Fees for any additional Services in effect on the earlier of the date as of which notice of termination has been provided to Provider or termination is effective) incurred by Merchant during the three (3) month period preceding the effective date of termination, (the “Early Termination Fee”).  Merchant will pay the Early Termination Fee to Provider within thirty (30) days after the effective date of termination of this Agreement.  Provider may, in its sole discretion, permit Merchant to terminate a Service without terminating the Agreement in its entirety; provided, that Provider may charge Merchant an Early Termination Fee in connection with the termination of such Service that shall be equal to the calculation above; provided, that the calculation shall include Fees incurred by Merchant solely with respect to such terminated Service. 

(e) Effects of Termination; Survival. Upon termination of this Agreement, all Fees incurred by Merchant for Services performed by Provider through the effective date of termination shall immediately come due, except for those Fees subject to a good faith billing dispute as evidenced in writing by Merchant to Provider at the time that the applicable Fees were billed. Merchant’s right to access and use the Services will cease on the effective date of termination. Merchant is responsible for downloading and retaining all data that it wishes to retain, and Provider shall have no obligation to provide Merchant with access to the Services, or copies of data or documents, following termination of this Agreement.  All provisions of this Agreement which by their nature should survive termination will survive to the extent necessary to effect their purposes, including, without limitation, the provisions of Sections 3 and 5 applicable to payment of any amounts that may be owed following termination of this Agreement, Section 6(d), this Section 6(e), Section 7 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Confidential Information), Section 11 (Intellectual Property), Section 12 (Assignment), Section 13 (Electronic Signatures; Counterparts), Section 14 (Governing Law; Jurisdiction); Section 15 (No Waiver), and Section 18 (Arbitration). To the extent that Provider agrees to make any of the Services available following termination of this Agreement, all provisions of this Agreement applicable to such Services shall remain in effect until Provider ceases to provide such Services.  

(7) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PROVIDER (OR ANY AFFILIATE) BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY: (A) INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES; (B) LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; (C) MATTER BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT FORESEEABLE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE 

POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE, (D) LOSS, DAMAGE, CLAIM, OR EXPENSE ARISING OUT OF OR RELATED TO (I) MERCHANT’S BREACH OF THE AGREEMENT, (II) NEGLIGENCE OF MERCHANT, ITS OFFICERS, EMPLOYEES, OR AGENTS, (III) PROVIDER’S RELIANCE ON MERCHANT INFORMATION, OR (IV) MERCHANT’S MODIFICATION OF ANY INFORMATION PROVIDED TO IT BY PROVIDER, OR (E) CLAIM BROUGHT MORE THAN THREE (3) MONTHS AFTER THE DATE AS OF WHICH SUCH CLAIM FIRST AROSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY MERCHANT TO PROVIDER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.  

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS CONTAINED IN THIS AGREEMENT ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES RELATING TO THEIR RELATIONSHIP AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.    

(8) No Representations or Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, PROVIDER AND ITS AFFILIATES AND SERVICE PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. NEITHER PROVIDER NOR ITS AFFILIATES OR SERVICE PROVIDERS MAKES ANY REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS MERCHANT MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER PROVIDER NOR ITS AFFILIATES OR SERVICE PROVIDERS REPRESENTS OR WARRANTS THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET MERCHANT'S REQUIREMENTS. MERCHANT ACKNOWLEDGES THAT NEITHER PROVIDER NOR ITS AFFILIATES CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, PROVIDER DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY PROVIDER, THE SERVICES ARE PROVIDED TO MERCHANT ON AN "AS IS" BASIS.   

(9) Indemnification.  

(a) Merchant will indemnify, defend and hold harmless Provider, and its directors, officers, employees, affiliates and agents from and against any and all third-party proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by Provider, its directors, officers, employees, Affiliates and agents to the extent arising out of or related to: (i) Provider’s reliance on Merchant Information or other documentation or information provided by Merchant to Provider in connection with the Services; (ii) Merchant’s negligence, willful misconduct, or fraud; (iii) Merchant’s failure to comply with any Applicable Laws; (iv) Merchant’s breach or nonperformance of any provision of this Agreement.

(10) Confidential Information.   

(a) Definitions. As used in this Section 10: “Confidential Information” means (i) the terms (but not the fact or existence) of this Agreement, and (ii) all trade secrets and other information disclosed by the Disclosing Party to the Receiving Party (as defined in 10(b)) orally, or in writing, whether or not designated as proprietary or ‘Confidential’ or some similar designation, including without limitation customer lists, financials, products, services, organizational structure and internal practices, forecasts, sales, budgets, trade secrets, know-how, designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, notes, analyses, compilations, reports, forecasts, studies, data, statistics, summaries and other materials disclosed to the Receiving Party that contain, or are based on, in whole or in part, any of the information described in this definition. 

“Data Privacy and Security Laws” means all federal, state, provincial, regional and local laws, regulations and rules imposed by any government, agency or authority in relation to the processing and security of Personal Information, including but not limited to the European Union’s General Data Protection Regulation and the California Consumer Privacy Act of 2018 as amended, replaced or superseded from time to time. 

“Employee Data” means data and information regarding or relating to Employees, which may include Personal Information, collected by or provided to Provider via or in connection with the Services. 

“Employees” refers to Merchant’s employees (including any independent contractors, Sub-merchants, or any other third parties using or benefitting from the Services).  

“Personal Information” means any information that relates to an identified or identifiable individual. Depending on the applicable Data Privacy and Security Laws, Personal Information may include, but is not limited to a name, address, contact details, unique identifiers, payment card information, biometric identifiers and information, preferences, history and profile data, IP addresses and location-based information. 

(b) Treatment of Confidential Information. Each Party (the "Receiving Party") understands that the other Party (the 

"Disclosing Party") has disclosed or may disclose Confidential Information relating to the Disclosing Party's business or Merchant’s Employees in connection with this Agreement. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information, except as necessary to carry out its obligations under this Agreement or as expressly permitted by the Privacy Statement. The Disclosing Party agrees that the foregoing obligations will not apply with respect to Confidential Information after five (5) years following the disclosure, or any Confidential Information that the Receiving Party can document (A) is or becomes generally available to the public by Disclosing Party or a third party not bound by a confidentiality obligation; (B) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (C) was rightfully disclosed to Disclosing Party by a third party not bound by a confidentiality obligation; or (D) was independently developed without use of any Confidential Information of the Disclosing Party as demonstrated by Receiving Party’s written records; provided, that the obligations with respect to Employee Personal Information shall remain in force indefinitely. 

(c) Data Privacy and Security.  (i) Provider is primarily collecting and processing the Personal Information of Merchant and its Employees to provide the Services described in this Agreement. Merchant shall comply with all applicable Data Privacy and Security Laws 

as part of its obligations under this Agreement and not by any act or omission put Provider in breach of the applicable Data Privacy and Security Laws. This includes obtaining any necessary consents or other measures to enable potentially Provider to lawfully process Employee Personal Information as part of the Services.  

(ii) Personal Information collected or received by Provider in connection with providing the Services shall be managed in line with the practices described in Provider’s Privacy Statement. Provider may provide Merchant or its Employees with additional notices or disclosures to the extent they are required or otherwise deemed appropriate by Provider under the applicable Data Privacy and Security Laws. For the avoidance of doubt, Provider’s provision of its Privacy Statement or other notices and disclosures described above shall not replace any obligations of the Merchant to provide any notices or disclosures in relation to its own processing of Personal Information under this Agreement as the employer or otherwise.  

(iii)Where appropriate, the Parties shall provide each other with reasonable assistance and cooperation in relation to each Party’s compliance obligations under the applicable Data Privacy and Security Laws. This includes support with individual rights requests or notifications from any governmental, regulatory or law enforcement authority pertaining to the Services and use of Personal Information under this Agreement. 

(iv) Where relevant or appropriate to its obligations under this Agreement, Merchant is responsible for implementing and maintaining appropriate technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services. In all cases, this obligation shall not limit Merchant’s obligations regarding the implementation of any security measures required under the Data Privacy and Security Laws.(v) If Merchant (whether directly or through a third party) discovers or becomes aware of any accidental or unlawful destruction, loss, alteration, theft, unauthorized disclosure of, or access to Personal Information (a “Security Incident”), Merchant shall promptly notify Provider and take any additional steps that are reasonably necessary to remedy any non-compliance with this Agreement. This includes complying with all applicable requirements of the Agreement as well as cooperation with the investigation of the Security Incident. To the extent any Security Incident is attributable to the acts or omissions of the Merchant, Merchant shall bear all costs associated with remedying the Security Incident and complying with its legal obligations under the applicable Data Privacy and Security Laws.

(11) Intellectual Property.  

(a) Intellectual Property Rights. As between the Parties, Provider retains all rights, title, interest, copyright, and other worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property rights that are in existence now and in the future (“Intellectual Property Rights”) in and to the Services and any hardware, software, or other materials provided by or on behalf of Provider related thereto (including all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features, functionality, applications, or services, whether developed by or on behalf of Provider) (the “Provider IP”), all of which shall and is expressly intended to remain vested in Provider (or its Affiliates or licensors).  (b) Use of Intellectual Property.  Provider may provide Merchant with access to use the Provider IP in connection with Merchant’s use of the Services. Merchant agrees that in the event that it does not accept all of the terms and conditions of any and all Provider IP (which may include third-party software) and any and all applicable license agreements provided to Merchant now or in the future, that Provider will not be obligated to perform Services dependent upon such Provider IP. Merchant will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Provider IP; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Provider IP; (iii) use or access the Provider IP to build or support, and/or assist a third party in building or supporting, products or services similar to the Services; (iv) remove or obscure any proprietary notices or labels from the Provider IP; (v) use the Provider IP in any way that would violate this Agreement or law, or for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with Provider’s provisioning of the Services (including but not limited to the use of automated systems or software (e.g. screen scraping) to extract data from any software or systems related to the Services); (vi) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on software, systems, or related materials or are otherwise made available to Merchant; (vii) alter, distribute, license, sublicense, resell, transfer, assign, rent, lease, loan, timeshare or otherwise commercially exploit the Provider IP to any third party; (viii) conduct any penetration or vulnerability testing on the Provider IP; or (ix) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the Provider IP. Merchant will enforce the provisions of this Agreement in connection with the use, protection, and security of the Provider IP by Merchant’s employees and agents. Merchant will notify Provider immediately of any unauthorized use or disclosure of Provider IP and will cooperate in remedying such unauthorized use or disclosure or any attempt to gain unauthorized access to the Provider IP through hacking, password mining or any other unauthorized or unlawful means.  (c) Merchant Information. Merchant owns all Merchant Information. Merchant hereby grants to Provider and its Affiliates a non-exclusive, royalty-free, fully paid up, and worldwide license to use, copy, modify (including the right to create derivative works of, which derivative works shall become the property of Merchant), display and transmit Merchant Information to the extent necessary to perform its obligations or exercise its rights under this Agreement, and otherwise permitted by the Privacy Statement. Merchant is solely responsible for the accuracy, quality, content and legality (including compliance with all Applicable Laws) of Merchant Information, the means by which Merchant Information is acquired, and any transfer and use of Merchant Information outside of the Services by or at the direction of Merchant. Merchant represents, warrants and covenants that it has all rights necessary to provide the Merchant Information to Provider and its Affiliates and to otherwise have such Merchant Information used or shared, as applicable, as permitted by this Agreement. Notwithstanding anything to the contrary in this Agreement, Provider and its Affiliates may create de-identified, anonymized, or de-identified aggregated data derived from Merchant Information and such data may be used for any lawful purposes, including, without limitation, to use, disclose, compile, distribute and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Services, the development of new Services, or otherwise. Upon creation, as between Merchant and Provider, Provider shall own and retain all Intellectual Property Rights in and to such data entirely without obligation to Merchant or restriction of any kind. (d) License to Use Marks.  During the term of this Agreement, Merchant hereby grants Provider and its Affiliates a nonexclusive, royalty free right and license to use and display Merchant’s name, logo, trademarks, service marks, images, and/or domain names (the “Merchant Marks”) on its website and marketing collateral, or to otherwise identify Merchant as a customer of Provider. Provider obtains no rights in the Merchant Marks except for the limited right described herein, and Merchant retains all right, title and interest in and to the Merchant Marks.  

(12) Assignment. Merchant may not assign this Agreement, or any of its rights or obligations hereunder, to any third parties, without the prior written consent of Provider. Any assignment made without such consent will be null and void.  

(13) Electronic Signatures; Counterparts. Signatures to this Agreement or any related document that are transmitted and received electronically, such as through transmission of a scanned or faxed document, or via secure email or a service such as DocuSign, are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. 

(14) Governing Law; Jurisdiction. This Agreement and all aspects of the relationship between the Parties shall be governed exclusively by the laws of the State of Tennesseewithout regard to, or application of, its conflict of laws, rules, and principles.  Any dispute arising out of, or in connection with, this Agreement will be submitted to the Federal or state courts located in Nashville, TN and Merchant waives any jurisdiction defenses and submits to such jurisdiction and venue.  

(15) Force Majeure. TSG POS shall not be in default of its obligations under this Agreement to the extent its performance (a) is delayed or prevented by natural disaster (e.g., earthquake, flood), national disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, or any other similar event beyond TSG POScontrol, and (b) could not have been prevented by the TSG POS reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by TSG POS through the use of substitute services, alternate sources, work-around plans or other means by which the requirements of a buyer of services substantively similar to the Services hereunder would be satisfied. Events meeting both of the criteria set forth in the foregoing clauses (a) and (b) are each referred to individually as a “Force Majeure Event”. Upon the occurrence of a Force Majeure Event, the TSG POS will be excused from any further performance or observance of the affected obligations for as long as such circumstances prevail, and provided that TSG POS continues to attempt to recommence performance or observance to the greatest extent possible as soon as possible and without delay. 

(16) Entire Agreement; Amendment. This Agreement contains the entire understanding of the parties and supersedes all previous understandings and agreements between the Parties for the Services provided, whether oral or written. This Agreement may not be modified except as mutually agreed to by the Parties in writing or as otherwise expressly provided herein; provided, however, that Provider may modify any term of this Agreement upon thirty (30) days prior written notice to Merchant of such change and the effective date thereof, and Merchant will be deemed to have accepted and agreed to such changes unless Merchant elects to terminate this Agreement by written notice to Provider prior to the effective date of the change. Such notice will be rendered ineffective to the extent that Provider elects not to effect the applicable modification and provides timely written notification thereof to Merchant.  

(17) No Waiver. If any provision of this Agreement or any portion thereof is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remainder of this Agreement will not in any way be affected or impaired No failure or delay by any Party hereto in exercising any right, power or privilege hereunder shall be deemed a waiver of such right, power or privilege, nor will any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.