This Merchant User License Agreement (the “Agreement”) dated as of the date of acceptance by means of a click-through, is made by and among Shopkeep.com, Inc. a Delaware Corporation (“Shopkeep.com”) and the entity designated by the registration data provided herewith (“Licensee”) and applies to Licensee’s use of software downloaded from Shopkeep.com and Licensee’s use of services provided by Shopkeep.com (“Shopkeep.com Services”).

READ THIS LICENSE CAREFULLY BEFORE LOADING ANY SOFTWARE FROM SHOPKEEP.COM OR USING THE SHOPKEEP.COM SOFTWARE OR SHOPKEEP.COM SERVICES. BY LOADING THE SHOPKEEP.COM SOFTWARE OR USING THE SHOPKEEP.COM SERVIES, LICENSEE ACCEPTS AND AGREES TO BECOME BOUND BY THE TERMS OF THIS LICENSE.

SHOPKEEP.COM RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT BY PROVIDING NOTICE OF CHANGES ON THE SHOPKEEP.COM WEBSITE. LICENSEE AGREES TO PERIODICALLY INSPECT THE SHOPKEEP.COM WEBSITE TO STAY INFORMED ABOUT SUCH CHANGES. LICENSEE AGREES THAT LICENSEE’S CONTINUED USE OF THE SHOPKEEP.COM SERVICE AFTER SUCH CHANGES ARE ANNOUNCED CONSTITUTES ACCEPTANCE OF SUCH CHANGES.

Shopkeep.com shall retain the ownership of the provided copy of Shopkeep.com software and the documentation provided therewith (referred to as a single entity, or as components, as “the Licensed Software”) which is licensed on a non-exclusive basis for use under the following conditions.

Permitted Uses

Subject to the terms hereunder, Shopkeep.com hereby grants to Licensee a limited, non-exclusive, non-transferrable, revocable license, without the right to sub-license, to install and operate the Licensed Software and to operate an account on the Shopkeep.com website solely for the benefit of Licensee and not for any third party, until the termination of this Agreement. Any rights not expressly granted hereunder are reserved. The are no implied rights of any kind.

Prohibited Uses

Licensee shall not (a) make copies of or further distribute the Licensed Software, including copying onto any other medium, (b) distribute, rent, sublicense, lease, resell, or assign the Licensed Software, (c) alter, modify or adapt the Licensed Software or the Shopkeep.com Services, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (d) export the Licensed Software without the appropriate foreign government licenses and without Shopkeep.com’s prior written approval, (e) resell, rent or otherwise provide access to the Shopkeep.com services to a third party or (f) take any action in an attempt to obtain any other Shopkeep.com user’s data, cause malfunction, crash, tamper with or otherwise impair the Shopkeep.com website and it services. Any rights not expressly granted hereunder are reserved by Shopkeep.com.

No rights in the Licensed Software or Shopkeep.com Services are granted, whether expressly or by implication, including, without limitation, any rights in any patents, copyrights, trademarks or trade secrets embodied therein, except in connection with the permitted uses expressly described herein.

Fees

Licensee agrees to timely pay the monthly fee set out in the order form or as required by the Shopkeep.com website. Licensee agrees to the Billing Policy, incorporated herein, and located here. Failure to comply with or otherwise pay fees due is a material breach of this agreement.

Data

Licensee acknowledges and agrees to the terms of the Shopkeep.com Privacy Policy located here. Shopkeep.com agrees that as between Licensee and Shopkeep.com, Licensee’s data maintained by Licensee on the Shopkeep.com website belongs to Licensee. Licensee hereby grants permission to Shopkeep.com for Shopkeep.com to use the data solely for providing Licensee the Shopkeep.com account, improving and maintaining the Shopkeep.com website services and for analytical purposes in a manner where such data is aggregated with other user data and cannot be readily reverse engineered into personally identifiable information.

End Customer Personal Information

Licensee agrees that notwithstanding anything to the contrary herein, Licensee shall handle any personally identifiable information that it inputs into the Shopkeep.com system in the following manner: (i) in the event Licensee seeks to export such data, Licensee shall use a commercially reasonable contact management tool to provide an opt-out mechanism for anyone who has provided Licensee personally identifiable information that is stored on Shopkeep.com’s systems, (ii) Licensee agrees that Shopkeep.com can delete such data in the event the Licensee exercises the Shopkeep.com opt-out mechanism and (iii) any use of such data by Licensee shall comply with Shopkeep.com’s privacy policy. Licensee shall indemnify and hold harmless Shopkeep.com and the ShopKeep.com Parties from any claim brought against Shopkeep.com alleging that personal information stored on Shopkeep.com was improperly used where such use was by Licensee while such information was stored on Shopkeep.com or any use after Licensee has exported such data.

Limited Liability

LICENSEE AGREES THAT THE SHOPKEEP.COM SOFTWARE AND SHOPKEEP.COM SERVICES ARE PROVIDED “AS IS.” WITHOUT ANY WARRANTY EXPRESS OR IMPLIED. ANY USE OF THE SHOPKEEP.COM SOFTWARE AND SHOPKEEP.COM SERVICES IS AT LICENSEE’S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL SHOPKEEP.COM OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS (“SHOPKEEP.COM PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SHOPKEEP.COM SOFTWARE OR THE SHOPKEEP.COM SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, SHOPKEEP.COM IS NOT RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE SHOPKEEP.COM SOFTWARE OR SHOPKEEP.COM SERVICES, LOSS OF DATA, THE COSTS OF RECOVERING DATA, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS. SHOPKEEP.COM MAKES NO WARRANTY OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE SHOPKEEP.COM SOFTWARE OR SHOPKEEP.COM SERVICES FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

LICENSEE ACKNOWLEDGES AND AGREES THAT SHARING OF ITS ACCOUNT INFORMATION, LOGIN INFORMATION OR PASSWORDS SHALL BE AT ITS SOLE AND ABSOLUTE RISK AND THAT SHOPKEEP.COM SHALL NOT BE LIABLE FOR ANY DAMAGE ARISING AS A RESULT OF SUCH SHARING.

Some countries do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Termination

Licensee may terminate this license at any time. ShopKeep.com, in its sole discretion, has the right to suspend or terminate this license and your account and refuse any and all current or future use of the ShopKeep.com Services for any reason at any time if you do not comply with this Agreement. This license and Licensee’s right to use the Licensed Software and Shopkeep.com Services automatically terminate if Licensee fails to comply with any provision of this Agreement. Licensee’s duties to (i) pay amounts due and payable, (ii) refrain from any kind of reverse engineering or other act in violation of this agreement or (iii) indemnify Shopkeep.com and the ShopKeep.com Parties shall survive termination of this Agreement. Upon termination Licensee will destroy all copies of the Licensed Software and documentation onto which the Licensed Software or documentation has been installed. Upon termination Shopkeep.com shall terminate the Licensee’s access to their Shopkeep.com account, the account itself and the data residing therein. LICENSEE MUST EXPORT THEIR ACCOUNT DATA PRIOR TO TERMINATION OF THE SHOPKEEP.COM SERVICE. SHOPKEEP.COM SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION. In addition, ShopKeep.com reserves the right and Licensee acknowledges such right for ShopKeep.com to terminate service of Licensee’s account on 30 days notice if ShopKeep.com determines in its sole discretion that it is not capable of fully meeting the apparent requirements of Licensee.

Confidentiality

Licensee agrees that the Licensed Software and the operation of the Shopkeep.com Services and its processes are the confidential information of Shopkeep.com and agrees not to disclose such software or such operation and processes to any third party. Licensee agrees that breach of this duty of confidentiality shall cause irreparable harm for which monetary damages would be difficult to quantify or insufficient and therefore Shopkeep.com shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond.

Credit Card Processing Terms And Conditions

If Licensee has selected that credit card transaction processing will be provided automatically with the ShopKeep.Com services using the T-Gate Payments system, Licensee agrees to the following contractual provisions:

Licensee hereby authorizes ShopKeep.com to bind Licensee to the end-user license agreement proferred by BridgePay Network Solutions, LLC d/b/a T-Gate Payments for the purpose of establishing Licensee as a customer of T-Gate Payments.

Licensee shall be responsible for the operation and connection of their point of sale equipment with the T-Gate Payments systems and services.

Licensee is liable for all fees charged to ShopKeep.com by T-Gate Payments for Licensee’s use of the T-Gate Payment system and service.

Licensee shall: (i) make reasonable efforts to secure any credit card transaction data residing on the equipment owned, controlled or operated by Licensee from intrusion or unauthorized access, (ii) comply with all state and federal laws governing the disclosure and use of retail customer information, (iii) not use, disclose, sell or disseminate any credit/debit card-holder information obtained in a credit card transaction processed through ShopKeep.com or T-Gate Payments, except as permitted by the card-holder, (iv) comply with the requirements of any debit/credit card or other payment brand rules, including those related to data security and customer data.

Licensee agrees that neither ShopKeep.com nor T-Gate Payments shall be liable for any improperly processed transactions, illicit access to Licensee’s account with T-Gate Payments or any of Licensee’s transaction data or unauthorized disclosure and use of passwords or T-Gate Payments account access information.

Licensee agrees to immediately notify ShopKeep.com in the event of any security breach of Licensee’s systems or unauthorized access to Licensee’s transaction data.

Licensee shall indemnify and hold Shopkeep.com and the Shopkeep.com Parties harmless from any claim brought against ShopKeep.com or any ShopKeep.com Party arising from breach by Licensee of any of the provisions under this section of the Agreement, including, without limitation all costs, expenses, reasonable attorney fees, damages or awards, as such costs and expenses are incurred.

LICENSEE AGREES THAT USE OF THE T-GATE PAYMENTS SYSTEM OR SERVICE IS AT LICENSEE’S SOLE AND ABSOLUTE RISK AND THAT NEITHER SHOPKEEP.COM,  NOR ANY SHOPKEEP.COM PARTY SHALL BE LIABLE IN ANY WAY OR UNDER ANY THEORY IN THE EVENT OF ANY CLAIM, DAMAGE OR EXPENSE INCURRED BY LICENSEE ARISING FROM USE OF THE T-GATE PAYMENTS SYSTEM OR SERVICE. LICENSEE ACKNOWLEDGES THAT SHOPKEEP.COM IS NOT RESPONSIBLE FOR THE T-GATE PAYMENTS SYSTEM AND THAT NO WARRANTY FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED, ARISES ON THE PART OF SHOPKEEP.COM. LICENSEE AGREES THAT LICENSEE’S SOLE RECOURSE IN THE EVENT OF ANY CLAIM IS AGAINST BRIDGEPAY NETWORK SOLUTIONS, LLC AND LICENSEE HEREBY IRREVOCABLY RELEASES AND WAIVES ANY CLAIM IT HAS OR MAY HAVE, WHETHER OR NOT INCHOATE, AGAINST SHOPKEEP.COM AND THE SHOPKEEP.COM PARTIES ARISING FROM USE OF THE T-GATE PAYMENTS SYSTEM. 

Representation

The Licensee represents and warrants that it has the due right and power to enter into this Agreement, entering into this Agreement will not cause the breach of any agreement Licensee has with a third party and that all of the registration information provided to Shopkeep.com is accurate in all respects. 

Choice of Law and Forum

This Agreement shall be construed under the laws of the State of New York, U.S.A. as applied to contracts performed entirely within the state.  Any dispute arising under this Agreement shall be exclusively heard in the state or federal courts residing in New York County, New York, U.S.A.  Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.