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Guildford Rewards

Merchant Terms & Conditions

Merchant Terms & Conditions (Guildford Rewards)

Last Updated: April 10, 2018

THESE MERCHANT TERMS & CONDITIONS (GUILDFORD REWARDS) (THESE “MERCHANT TERMS” OR THIS “AGREEMENT”) ARE ENTERED INTO FOR GOOD AND VALUABLE CONSIDERATION AND ARE BINDING AND ENFORCEABLE BETWEEN YOU (“YOU”, “YOUR” OR “MERCHANT”) AND PAYWITH WORLDWIDE INC., A DELAWARE CORPORATION, (“PAYWITH”, “WE”, “US” OR “OUR”). “YOU”, “YOUR” OR “MERCHANT” REFERS TO THE ENTITY OR ORGANIZATION THAT SIGNS A DOCUMENT, OR CLICKS A BOX ONLINE INDICATING AGREEMENT TO THESE MERCHANT TERMS OR USES THE SERVICES DESCRIBED IN THIS AGREEMENT AND ANY OFFER FORM OR OTHER ADDENDUM TO THIS AGREEMENT. BY SIGNING A DOCUMENT, OR CLICKING A BOX ONLINE INDICATING AGREEMENT TO THESE MERCHANT TERMS OR BY USING THE SERVICES DESCRIBED IN THIS AGREEMENT, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THIS AGREEMENT AND ANY APPLICABLE OFFER FORM AND ADDENDUM. YOU SHALL ALSO INFORM ALL USERS OF THE SERVICES OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY APPLICABLE OFFER FORM AND ADDENDUM.

This Agreement incorporates by reference each Offer Form and Addendum which you have accepted or shall accept by signing or clicking a box online indicating your acceptance. It is your responsibility to read and ensure you understand this Agreement and each applicable Offer Form and Addendum. To the extent that any applicable Offer Form or Addendum conflicts with this Agreement, the Offer Form or Addendum associated with the applicable Service govern with respect to such Service.

1) Definitions

a)  “Applicable Law” means any applicable international, federal, state, or local statute, regulation, bylaw or ordinance, expressly including without limitation those relating to individual privacy or the distribution of email and other one-to-one digital messages.

b)  “Merchant Data” means all data and other information uploaded by you to the Merchant Portal or otherwise provided by you to us in connection with the Services.

c)  “Merchant Offer” means a discount, incentive, reward or credit offered by you to a Cardholder by way of email, SMS, push or in-app notification.

d)  “Network” means MasterCard International Incorporated, Visa Inc., Cirrus, Plus and/or any other electronic payment network for transmitting items and settlement thereof.

e)  “Cardholder Application” means an SDK or native mobile software application or web- based application which, amongst other things, allows a Cardholder to create an account linked to their Card and to receive Merchant Offers.

f)  “Card” means a gift, rewards, points, debit, credit, prepaid or other payment card in physical or virtual form which has the functionality to allow a card holder to download a Cardholder Application and create an account linked to such card, and includes a Guildford Rewards Card.

g)  “Guildford Rewards Card” means a Guildford Rewards Card in respect of which the Cardholder has created a Program Account in the Guildford Rewards Cardholder Application and linked and activated their card to the Guildford Rewards Cardholder Application.

h)  “Cardholder” the holder of a Card.

i)  “Services” means the programs and services provided by us to you pursuant to this

Agreement and any applicable Offer Form or Addendum to this Agreement.

2) Cards

The provision of the Services relies on the use by your customers of Cards. The use of Cards relies on existing credit card payment processing infrastructure. As a result, our provision of the Services requires that you maintain a valid and functioning merchant account (“Merchant Account”) and a payment processing system (“Payment Processing System”) on the Network to accept payment from customers for goods or services.

2) Guildford Rewards Program

Participation in the Guildford Rewards Program allows you to market your goods and services to holders of Guildford Rewards Cards by making a Merchant Offer. A Merchant Offer enables Guildford Rewards Cardholders to earn Guildford Rewards Dollars when they purchase your goods and services in an eligible transaction. “Guildford Rewards Dollars” are redeemable prior to their stated expiry date for their stated value at any merchant in Guildford Town Centre.

Your Payment Processing System must allow for partial authorizations of Guildford Rewards Card transactions and you must be able to confirm to us that this is the case in order for you to be able to make a Merchant Offer in the Guildford Rewards Program.

To make a Merchant Offer, you must complete an Offer Form for the Guildford Rewards Program setting out the amount of Guildford Rewards Dollars available to be earned on eligible transactions as well as determining which conditions apply to the Merchant Offer. While you have an active Merchant Offer, we will provide you with our regular data and analytics reports relating to your Merchant Offer.

Merchant Offers set out in any Offer Form accepted by you will be available for redemption by eligible Guildford Rewards Cardholders for Guildford Rewards Dollars when they purchase your products or services at your store in Guildford Town Centre subject to the terms set out in any Offer Form and these Merchant Terms. Merchant Offers initiated by you will be advertised to Guildford Rewards Cardholders within the Cardholder Application and by such other means as we determine from time to time.

You will pay us an amount equal to the amount of all Guildford Rewards Dollars earned by Cardholders on redemption of Merchant Offers initiated by you. You will also pay us any fees or commissions set out in any Offer Form accepted by you. All payments will be made in accordance with Section (9).

By manually or electronically signing an Offer Form, or by clicking a box online indicating your acceptance of an Offer Form, you agree to be bound by and honour the terms of the Merchant Offer set out in the Offer Form, including any payment terms set out in the Offer Form, and these Merchant Terms. The Guildford Rewards Program is a “Marketing Program” as such term is used in this Agreement.

The Guildford Rewards Card is administered by PayWith and EML Payments LLC, USA (“EML”) and you acknowledge that EML may rely on and enforce the provisions of this Agreement as it pertains to the Guildford Rewards Program. All inquiries and Merchant support requests relating to the Guildford Rewards Program shall be directed to EML by email at support@emlpayments.com or by telephone at 1- 844-806-8733.

3)  Other Marketing Programs

a)  From time to time we may offer you participation in one or more of our other marketing programs (each a “Marketing Program”). You may participate in more than one Marketing Program at the same time. Marketing Programs permit you to market your goods and services to certain Cardholders (the “Target Cardholders”). Target Cardholders in any Marketing Program may be limited to holders of certain types of Cards only or to certain groups of Cardholders. The group of Target Cardholders will be defined in the applicable Marketing Program Addendum (defined below).

b)  The specific terms and conditions applicable to your participation in a Marketing Program, including in respect of fees, charges and incentives payable by and available to you can vary and are determined by the parameters of the applicable Marketing Program. Those terms and conditions and any applicable statement of work, will be set out in an Addendum to this Agreement (a “Marketing Program Addendum”). You will be deemed to have accepted each Marketing Program Addendum, which shall be incorporated into this Agreement, when you subscribe to a Marketing Program by signing such Addendum. It is your responsibility to read and ensure you understand the terms and conditions contained in the applicable Marketing Program Addendum when you subscribe to a Marketing Program.

4)  Other Services

From time to time we may develop and offer to provide you with other services (“Other Services”). The benefits, rights, obligations, terms and conditions pertaining to any Other Services, including in respect of fees, charges and incentives, will be set out in an Addendum to this Agreement (“Other Services Addendum”). You will not be deemed to have subscribed to any Other Services until such time as you have signed an Other Services Addendum. You will be deemed to have subscribed to an Other Service when you sign an Other Services Addendum at which time it shall be incorporated into this agreement by reference. It is your responsibility to read and ensure you understand each Other Service Addendum when you subscribe to any Other Services.

5)  Merchant Portal

a)  In connection with one or more Marketing Programs or Other Services, we may provide you with access to a portal on our website, accessible by user id and passcode and which may allow you to view certain transactional data regarding the Services, upload Merchant Data and initiate Merchant Offers (“Merchant Portal”). The content, form and functionalities of the Merchant Portal will be determined by us from time to time.

b)  If you are provided with access to our Merchant Portal, we shall ensure that the Merchant Portal is available to you 99.5% of the time in any calendar month (as measured in accordance with accepted industry standards and excluding downtime caused by you, your equipment or factors outside of our reasonable control) provided that your sole remedy for our failure to satisfy this requirement shall be termination of this Agreement in accordance with Section 19).

6)  Our Obligations

We shall:

a)  provide the Services described in these Merchant Terms and in each applicable Offer Form and Addendum to you in accordance with the terms and conditions of this Agreement and each applicable Offer Form and Addendum; and

b)  ensure each Cardholder receives the benefit of each Merchant Offer in accordance with the terms and conditions of each Merchant Offer and this Agreement.

7) Your Obligations

As a condition of the provision of the Services, you agree to:

a)  make all payments required under this Agreement or any applicable Offer Form or Addendum when due;

b)  promptly provide us with all data and information (which shall not include personal information) reasonably required from you to provide the Services;

c)  ensure that all Merchant Data is complete and accurate and is not infringing, libelous, or otherwise unlawful or tortious material, does not violate third-party privacy rights and is provided to us in accordance with Applicable Law;

d)  accept sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Merchant Data;

e)  authorize us to advertise your business to Cardholders, in accordance with this Agreement and any applicable Offer Form or Addendum;

f)  provide Cardholders with the goods and/or services that are purchased with Cards and accept sole responsibility for the quality, durability, merchantability, fitness for use or any other issues in respect of such goods and/or services and for all customer complaints and customer service issues with respect to such goods and/or services;

g)  honor all Merchant Offers issued according to your instructions and offer the same prices (excluding applicable Merchant Offers) to any customer paying with Cards as customers using any other payment method;

h)  ensure that no Merchant Offer nor any advertising or promotion of your products or services pursuant to the Services will constitute false, deceptive or unfair trade practices or a breach of any Applicable Law; and

i)  accept sole responsibility, including financial liability, for any Merchant Offer issued according to your instructions.

8) Acceptable Use

You shall: (i) prevent unauthorized access to, or use of, the Merchant Portal or the Services; (ii) notify PayWith promptly of any unauthorized access to, or use of, the Merchant Portal or the Services of which you become aware; (iii) maintain the security of your login id and password in the Merchant Portal and ensure that they are only used by appropriate persons within your organization; (iv) not make the Merchant Portal, the Services or any content contained therein available to, or use it for the benefit of, anyone other than you; (v) comply with Applicable Law when using the Merchant Portal and the Services; (vi) not use the Merchant Portal or the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (vii) not use the Merchant Portal or the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (viii) not interfere with or disrupt the integrity or performance of the Merchant Portal, our websites, servers (including third party hosted servers) or related systems or networks or third-party data contained therein; (ix) not attempt to gain unauthorized access to any other service or content on our websites, servers (including third party hosted servers) or related systems or networks; (x) not permit direct or indirect access to or use of the Merchant Portal or services in a way that circumvents a limit on the use thereof; (xi) not copy the Merchant Portal or the Services or any part, feature, function or user interface thereof or any content contained within the Merchant Portal or the Services except data and analytics expressly provided to you in accordance with the Services; (xii) not frame or mirror any part of the Merchant Portal or the Services, other than framing on your own intranets or otherwise for your own internal business purposes or as expressly permitted in any Offer Form or Addendum; (xiii) not access the Merchant Portal or the Services in order to build a competitive product or service; and (xiv) not reverse engineer the Merchant Portal or any Service. Any use of the Merchant Portal or the Services in breach of this Agreement, by you that in our judgment threatens the security, integrity or availability of our services, data and systems, may result in our immediate suspension of your access to the Merchant Portal and the Services, however we will use commercially reasonable efforts under the circumstances to provide you with notice and an opportunity to remedy such violation or threat prior to such suspension.

9)  Fees, Billing and Payments

a)  You will pay us all fees, commissions, charges, costs, reimbursements and interest and any other amounts payable by you to us set out in this Agreement or any applicable Offer Form or Addendum (collectively, “Amounts Due To Us”)

b)  You agree that absent manifest error, our records shall be deemed conclusive as to the amounts owing by you to us from time to time. Furthermore, you agree that failure to notify us of any error or omission within sixty (60) days of receipt of any invoice shall be deemed acceptance by you of the amount owing under such invoice as correct.

c)  Unless and to the extent otherwise stated in any applicable Offer Form or Addendum, any Amounts Due To Us do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value- added, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with Amounts Due To Us, excluding taxes based on our net income or property. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section, the appropriate amount shall be invoiced to and paid by you in addition and at the same time as the Amounts Due To Us, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

d)  PayWith will invoice you monthly (or at such other frequency as we advise you in writing from time to time) for all fees, commissions, charges, costs, reimbursements, interest and any other amounts payable by you to us plus Taxes, if applicable. The balance owing on any invoice will be due, within 15 days of receipt of the applicable invoice (each, a “Payment Date”) unless otherwise specified on any Offer Form or Addendum or any pre-authorized payment form.

e)  If any Amounts Due To Us hereunder or under any applicable Offer Form or Addendum are not paid when due, interest shall accrue thereon at the lesser of (a) two percent (2%) per month, and (b) the maximum amount permitted by applicable law, in either case, calculated and payable daily from the date such amount became due until the date paid. Following any default on payment, PayWith reserves the right to require advance payment from you against any or all Amounts Due To Us as a condition of ongoing access to or use of the Services by you. PayWith further reserves the right to pursue legal action to recover outstanding Amounts Due To Us and applicable Taxes.

10)  Cardholder Complaints

We will be responsible for all Cardholder complaints relating to the functioning of Cards, non-receipt by Cardholders of Merchant Offers to which they are entitled and relating to Merchant Offers to the extent they not issued in accordance with your instructions. You will, at our expense, provide reasonable cooperation in our attempts to resolve such complaints.

You will be responsible for all Cardholder complaints relating to the provision of goods and services to Cardholders, the return or exchange thereof and all issues pertaining to quality fitness and reliability thereof. You will also be responsible for all Cardholder complaints relating to Merchant Offers issued by

us in accordance with your instructions. We will, at your expense, provide reasonable cooperation in your attempts to resolve such complaints.

11) Returns and Refunds

If a customer of yours would like a refund or returns a product which they purchased using a Card and you provide a store credit, PayWith will still provide the Cardholder with the benefit of any Merchant Offer applicable to the original purchase and bill you for commissions and Merchant Offer values applicable to the original purchase. Alternatively, you may issue a refund to the Cardholder against the Card(s) originally used to make the purchase in which case you will not be billed (or will receive a credit if already billed) for the applicable commissions and Merchant Offer values.

12) Representations and Warranties

Each party represents that it has validly entered into this Agreement and has the legal power to do so.

13)  Intellectual Property

a)  You acknowledge and agree that, other than the Merchant IP and your Confidential Information (each defined below), we own all rights, title and interest in and to the software, technology, tools, content, websites, online services, trademarks and other materials related to the Services and your engagement with the Services, or otherwise used by us to provide the Services (collectively, the “PayWith IP”), and no assignment, transfer, license or other rights to the PayWith IP are granted to you by this Agreement or otherwise. You shall not rent, lease, license, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare the PayWith IP or any portion thereof, or use such PayWith IP as a component of or a base for products or services prepared for commercial sale, license, sublicense, lease, access or distribution. You shall not prepare any derivative work based on the PayWith IP, nor shall you translate, reverse engineer, decompile or disassemble the PayWith IP.

b)  During the term of this Agreement, you authorize us to use, copy, reproduce, distribute and publish any of your trademarks, service marks, logos, photographs, text or images provided or to be provided by you to us (“Merchant IP”) as may be required for the provision of the Services pursuant to this Agreement and any applicable Offer Form or Addendum and in accordance with any written directions you may provide to us in respect to the use of your Merchant IP. You represent and warrant to us that you have the right to provide the Merchant IP to us, and that the use, reproduction, copying, and publication of the Merchant IP by us and by our affiliates and advertising partners: (a) will not infringe, violate or misappropriate any third-party copyright, patent, trade secret or other proprietary or intellectual property rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or obscene or otherwise violate any law.

14)  Disclaimers

EXCEPT AS EXPRESSLY PROVIDED HEREIN OR ANY OFFER FORM OR ADDENDUM, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED

WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

NO STATEMENT, EITHER ORALLY OR IN WRITING, MADE BY ANY OF OUR OFFICERS, EMPLOYEES OR AGENTS WILL VARY THE PROVISIONS OF THIS SECTION (14).

15)  Limitation of Liability

a)  IN NO EVENT WILL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES ON ACCOUNT OF LOST PROFITS, LOST REVENUES OR FAILURE TO REALIZE ANTICIPATED BUSINESS BENEFITS, ARISING IN CONNECTION WITH THIS AGREEMENT, ANY OFFER FORM OR ADDENDUM, ANY SERVICE OR THE MERCHANT PORTAL, REGARDLESS OF THE FORM OF ACTION, WHETHER OCCURRING IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY KNEW THAT SUCH DAMAGES MAY HAVE BEEN INCURRED.

b)  IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, ANY OFFER FORM, ADDENDUM, ANY SERVICE OR THE MERCHANT PORTAL EXCEED THE AMOUNT OF FEES EARNED BY US FROM YOU IN CONNECTION WITH THE SERVICES IN THE SIX (6) MONTHS PRIOR TO THE DATE ON WHICH SUCH DAMAGES OCCURED. THIS LIMITATION OF LIABILITY SHALL NOT LIMIT (I) ANY DAMAGES RESULTING FROM A BREACH OF ANY PARTY’S OBLIGATIONS UNDER SECTION (8), (13) or (17), (II) EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION (16) OR (III) YOUR OBLIGATION TO PAY ANY AMOUNTS DUE TO US. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

16)  Mutual Indemnity

a) We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify and hold you harmless in respect of any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of (such approval not to be unreasonably withheld), a Claim Against You, provided you (i) promptly give us written notice of the Claim Against You, (ii) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases you of all liability), and (iii) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to a Service, we may in our discretion and at no cost to you (A) modify the Services so that they are no longer claimed to infringe or misappropriate, (B) obtain a license for your continued use of that Service in accordance with this Agreement, or (C) terminate your subscriptions for that Service upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Merchant Data or your use of the Services in violation of this Agreement or any applicable Offer Form or Addendum.

b)  b) You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that any Merchant Data infringes or misappropriates such third party’s intellectual property rights, or arising from your use of the Services or Merchant Portal in violation of the Agreement, any Offer Form or Addendum or Applicable Law (each a “Claim Against Us”), and you will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing (such approval not to be unreasonably withheld) of, a Claim Against Us, provided we (i) promptly give you written notice of the Claim Against Us, (ii) give you sole control of the defense and settlement of the Claim Against Us (except that you may not settle any Claim Against Us unless it unconditionally releases us of all liability), and (iii) give you all reasonable assistance, at your expense.

c)  This Section (16) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section (16).

17) Confidentiality

a) In this section (17), the following terms will have the following meanings, respectively:

i) “Confidential Information” means any and all data, knowledge, know-how, information, and/or techniques and all documents, recordings, drawings, materials, models, software and any other materials of any nature whatsoever concerning the Disclosing Party’s proprietary data, process or technology, disclosed or provided by the Disclosing Party to the Receiving Party; provided, however that none of the foregoing shall be considered “Confidential Information” for the purposes of this Agreement if and when it:

(A)  is published or becomes available to the general public other than through a breach of this Agreement;

(B)  is obtained by the Receiving Party from a third party with a valid right to disclose it, provided that said third party is not under a confidentiality obligation to the Disclosing Party;

(C)  is independently developed by employees, agents or consultants of the Receiving Party who had no knowledge of or access to the Disclosing Party’s Confidential Information as evidenced by the Receiving Party’s business records;

(D)  was possessed by the Receiving Party prior to receipt from the Disclosing Party, other than through prior disclosure by the Disclosing Party, as evidenced by the Receiving Party’s business records; or

(E) is required to be disclosed by judicial or administrative process or timely disclosure requirements imposed by Applicable Law or by stock exchange policies requiring the Receiving Party to disclose any or all of the Confidential Information, provided however that the Receiving Party will promptly notify the Disclosing Party, allow the Disclosing Party reasonable time to review such proposed disclosure, and the Receiving Party will maintain confidentiality to the greatest extent permissible;

ii)  “Disclosing Party” will refer to the party whose Confidential Information is disclosed to the other; and

iii)  “Receiving Party” will refer to the party receiving Confidential Information disclosed by the other.

b)  Subject to section (13)(b), the parties hereby acknowledge and agree that the Disclosing Party owns any and all right, title and interest in and to the Confidential Information disclosed by it.

c)  The Receiving Party will not, without the Disclosing Party’s prior written consent, use the Confidential Information, directly or indirectly, for any purpose other than as required to fulfill its obligations under this Agreement.

d)  The Receiving Party will keep and use the Confidential Information in confidence and will not, without the Disclosing Party’s prior written consent, disclose any part of the Confidential Information to any person, firm, corporation, or other entity regardless of any affiliation or relationship with the Receiving Party except that PayWith may disclose the Confidential Information of Merchant to a wholly owned subsidiary to the extent that such subsidiary is a subcontractor provider of the Services and provided such subsidiary agrees to be bound by this Section (17) with respect to such Confidential Information.

e)  The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or any unauthorized use or release of any Confidential Information may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing Party and therefrom, that upon any such breach or any threat thereof, the Disclosing Party will be entitled to (i) recover its actual damages incurred by reason of such breach, including without limitation, its reasonable legal fees and costs of suit, (ii) obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this Agreement; and (iii) pursue any other remedy available at law or in equity.

f)  The Receiving Party will notify the Disclosing Party in writing immediately upon the occurrence of any unauthorized release of Confidential Information or other breach of this Agreement of which it is aware. In the event of a disputed disclosure, the Receiving Party will bear the burden of proof of demonstrating that the information falls under the above- described exceptions.

a) Nothing provided in this Agreement (including this section (17) or any Offer Form or Addendum shall prevent us from disclosing to any party for any purpose aggregated statistics about PayWith marketing activities, transactions with Cards or our services that are not identifiable with your business.

18)  Your Privacy and Data

a)  Our privacy policy ("Privacy Policy"), which can be found here: https://legal.paywith.com/privacy explains how we treat your personal data and information and protect your privacy when you use our Services and the Merchant Portal. The Privacy Policy is incorporated herein by reference and it is your obligation to ensure that you have read and understand our Privacy Policy. By using our Services, you agree that we can use your data in accordance with our Privacy Policy.

b)  Our Privacy Policy is incorporated into any Offer Form or Addendum which refer to these Merchant Terms or direct you to a URL at which these Merchant Terms are located. By signing an Offer Form or Addendum or clicking a box online indicating your acceptance to the terms of an Offer Form or Addendum which refers to these Merchant Terms, you are deemed to have accepted and agreed to be bound by our Privacy Policy.

19)  Term, Suspension and Termination

a)  This Agreement shall continue in effect until terminated in accordance with this section (19). This Agreement shall survive the expiry, or termination or suspension of any Service or the expiry, termination or suspension of any applicable Offer Form or Addendum unless and until this Agreement is specifically terminated in accordance with the provisions hereof.

b)  You may terminate this Agreement at any time upon 60 days written notice to us provided that on the effective date of such termination, all Services have ceased and any applicable Offer Form or Addendum has expired or been terminated in accordance with its terms.

c)  You may terminate or suspend any Marketing Program or Other Services in accordance with the applicable Offer Form or Addendum.

d)  PayWith may terminate this Agreement, the Guildford Rewards Program, any applicable Offer Form or Addendum and all Services in their entirety: (i) at any time upon 45 days written notice to you (provided that any Offer shall cease to be available to Cardholders within 15 days of such Notice); and (ii) on 14 days prior notice to you if you are in breach of this Agreement or any applicable Offer Form or Addendum; and (iii) immediately at any time and without notice if you violate any laws or otherwise engage in any conduct that may adversely affect our business or reputation, or if we, in our sole discretion believe that the engagement is related to any fraudulent or unlawful activity.

e)  PayWith may also terminate or suspend your participation any Marketing Program or Other Service to which you have subscribed as permitted and in accordance with the applicable Offer Form or Addendum.

f)  If this Agreement is terminated or suspended, the Services, including all Marketing Programs or Other Services to which you have subscribed, shall be terminated or suspended on the effective date of such termination or suspension.

g)  If the Services, this Agreement, any applicable Offer Form or Addendum is terminated by you or us, you shall remain liable to pay any fees, commissions or other amounts accruing to us up to the effective date of such termination provided that to the extent that any Merchant Offers cannot be terminated, you shall remain liable to repay any Merchant Offers and applicable fees and commissions related thereto until such Merchant Offers expire in accordance with their terms.

h)  If all or part of the Services are terminated, PayWith will have the right to either maintain or delete all or any part of the transaction and other data associated with the Services. If you choose to reactivate the Services later and PayWith has chosen to maintain your data, we may provide you with access to some of this data; however, PayWith is not required to do so.

20) General

c) This Agreement is incorporated into any Offer Form or Addendum which refer to these Merchant Terms or which direct you to a URL at which these Merchant Terms are located. By signing an Offer Form or Addendum or clicking a box online indicating your acceptance to the terms of an Offer Form or Addendum which refers to these Merchant Terms, you are deemed to have accepted and agreed to be bound by these Merchant Terms.

d)  This Agreement together with each applicable Offer Form and Addendum, represents the entire agreement between you and us as to the subject matter thereof, and supersedes all prior written and oral representations and discussions between you and us.

e)  Any notice, request, approval or written consent required under this Agreement or any Offer Form or Addendum shall be sufficiently given if in writing and delivered in person or mailed (certified or registered mail, return receipt requested) or emailed by one party to the other at the address set forth on the execution page hereof or to such other address as the recipient may subsequently furnish in writing to the sender. Notices to PayWith shall be addressed to the attention of its Chief Operating Officer. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated in writing. Notice delivered or mailed shall be effective upon receipt and emailed shall be effective upon confirmation of receipt.

f)  The relationship between PayWith and you under this Agreement and each applicable Offer Form and Addendum is that of independent contractor and nothing herein or therein will be deemed to create a joint venture, partnership or agency relationship between the parties for any purpose.

g)  You may not assign or transfer or assign any of your rights or obligations under the Agreement without our prior written consent.

h)  PayWith may use any wholly owned subsidiary as a subcontractor in respect of the Services provided such subsidiary agrees to be bound by the terms of this Agreement and any applicable Offer Form or Addendum and PayWith shall remain primarily obligated to you to provide the Services. PayWith may assign its rights and obligations under this Agreement, any Offer Form and any Addendum to any wholly owned subsidiary of PayWith or any acquirer of all or part of PayWith or such subsidiary or either of their assets. PayWith shall endeavour to give you notice of such assignment but shall not be required to provide you notice for such assignment to be effective.

i)  Sections (13) through (17), inclusive, (19)(g) and this section (20) of this Agreement will survive any termination or suspension of this Agreement or any applicable Offer Form or Addendum, indefinitely.

j)  Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, or internet disturbance) that was beyond the party's reasonable control.

k)  The communications between Merchant and PayWith may use electronic means. For contractual purposes, Merchant (a) consents to receive communications from PayWith in an electronic form, and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that PayWith provides to you electronically will, to the greatest extent permissible by applicable laws, satisfy any legal requirement that such communications would satisfy if they were in writing.

l)  If any provision of this Agreement or any applicable Offer Form or Addendum is held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of any other provisions contained in this Agreement or such Offer Form or Addendum, and the remaining portions of this Agreement and such Offer Form or Addendum shall continue in full force and effect.

m)  In connection with your use of the Services, we may contact you regarding service announcements, administrative messages, and other information. By using the Services, you agree to those communications.

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