Paytronix Service Agreement

Last updated and effective as of 08/17/2023.

The following Paytronix Service Agreement (“Agreement”) is a binding agreement between Client and Paytronix Systems, Inc., (“Paytronix”). This Agreement governs Client’s use of the Services and Client agrees to be bound by this Agreement. Client’s use of the Services are also pursuant to a separate manually or digitally-executed order form (“Order Form”), or any executed statements of work (“SOWs”). The additional terms become part of the Agreement.

1. DEFINITIONS

1. Client means the entity identified in an Order Form or Statement of Work.
2. Paytronix means Paytronix Systems, Inc., a Delaware Corporation, with an address at 80 Bridge Street, Newton, Massachusetts 02458.
3. Hosted Services means the services provided to Client via software applications hosted by Paytronix (such as, for example, loyalty program services, stored value card services, online ordering, merchant web-based access to rules and reports, customer web access to account information, or other services).
4. Deployment Services means the services provided to Client to install the Programs and Software.
5. Support Services means the services provided to Client to support the Hosted Services.
6. Programs means Client's stored-value, marketing, loyalty or other customer-based programs that are enabled by the Hosted Services.
7. Services means the Hosted Services, Deployment Services and Support Services provided by Paytronix.
8. Client System means all equipment and ancillary services needed to connect to, access or otherwise use the Services via the Internet or dial-up (including without limitation, computer servers, point of sale devices, modems, software and network and communication services).
9. Software means all computer programs that are licensed by Paytronix and installed on the Client System, computer programs that are executed or maintained on the Hosted Services, the user guide and other documentation from Paytronix, and all updates to any of the foregoing.
10. Account Information means any and all customer registration information, transaction information, and any other data collected by Paytronix in connection with providing the Services solely to Client, but excludes Anonymous Information.
11. Client Content means videos, images, audio, photos, graphic designs. menus, sponsorships and/or other types of content submitted by Client to Paytronix as part of this Agreement.
12. Contract Term means the period of time as defined in the Order.

2. LICENSES 

Paytronix grants to Client a nonexclusive, nontransferable license to use the Software and Service, at its retail stores, at Client’s corporate headquarters and Client’s data center, per the configuration listed, solely for operating the Programs with the Hosted Services. A retail store shall be considered licensed (“Licensed Store”) when the Software has been installed such that the retail store is able to run transaction through the Hosted Services. Licensed Stores may include stores owned or managed by Client’s franchisees (if applicable). Client is responsible for providing Paytronix with the list of stores it wishes to be licensed and Paytronix will enable such stores for the Hosted Services. Once enabled, Client will be able to review the list of Licensed Stores by logging into the Paytronix merchant web portal, selecting “Store Administration” and then “Stores.” It is Client’s responsibility to review the Licensed Stores to ensure they are the correct stores with the proper information. Client may add (or subtract) Licensed Stores by contacting Paytronix support or by sending an email request to Paytronix at [email protected].

3. CONFIDENTIALITY

1. Definition. “Proprietary Information” means all Account Information; and all financial, business, marketing, customer, supplier, operations, technical, economic or engineering information; trade secrets and software of a party; including, in each case, all originals, copies, notes, analyses, digests and summaries prepared in any form, which is disclosed to or otherwise acquired by the other party in relation to this Agreement, and either (a) disclosed in tangible form and marked as confidential at the time of disclosure or (b) disclosed in any manner such that a reasonable person would understand the nature and confidentiality of the information.  Proprietary Information shall not include any information that the receiving party can demonstrate by its records (i) is or becomes generally available to the public without breach of this Agreement, (ii) was in its possession or known by it prior to receipt from the disclosing party, (iii) was rightfully disclosed to it by a third party, or (iv) was independently developed without use of any Proprietary Information of the disclosing party.  Proprietary Information shall remain the property of the respective owner.  The foregoing exceptions shall not apply to Proprietary Information that constitutes personal data (as defined in the DPA) or personal information (as defined in the DPA).
2. Confidentiality. Except for the specific rights granted by this Agreement, neither party shall use or disclose any Proprietary Information of the other party without its written consent.  The receiving party shall use the same degree of care to protect the disclosing party’s Proprietary Information as it uses to protect its own Proprietary Information, but no less than reasonable care, including: ensuring that its employees and contractors who access the Proprietary Information (a) have a need to know it for the purposes permitted hereunder and (b) are apprised of the confidential and proprietary nature of the Proprietary Information and all restrictions in this Agreement.  Each party shall bear the responsibility for any breach of confidentiality by its employees and contractors.  Promptly after request by the disclosing party, the receiving party shall return to the other or, if so directed by the other party in writing, destroy all originals and copies of any of the disclosing party’s Proprietary Information (including without limitation, all licensed materials) and all information, records and materials developed therefrom.  Each party may only disclose the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, however, that either party may provide a copy of this Agreement (or otherwise disclose its details) to any actual or prospective acquirer, investor or lender (who is required to treat this as confidential) in connection with any financing transaction or due diligence inquiry.
3. Required Disclosure. Nothing herein shall prevent a receiving party from disclosing all or part of the other's Proprietary Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws or regulations); provided, that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose, and (b) cooperate fully with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.

4. PROPRIETARY RIGHTS 

1. No Implied Licenses. Except for the limited rights and licenses expressly granted hereunder, no other license is granted and no other use is permitted. Paytronix (and its licensors) retain all right, title and interest in and to its marks and logos, and the Paytronix Services and Software.
2. Client Property. Client retains all right, title and interest in and to its marks and logos and owns all of its Proprietary Information. Notwithstanding anything to the contrary in this Agreement, Paytronix may use transactional data from such Proprietary Information to perform industry analysis (including without limitation determining buying patterns and correlations) where no more than 20% of the total data in such analysis derives from Client’s Account Information and where all identifiable data of the Client and its customers is removed from the Account Information prior to creating such analysis (“Anonymous Information”), and Client expressly consents to Paytronix’s creation and use of such Anonymous Information for Paytronix’s lawful business purposes. For clarification (and without limitation), nothing prohibits Paytronix’s collection, analysis or use of information regarding vendors, product categories, buying patterns, ordering correlations, or similar information.
3. Client Content.   Client shall be solely responsible for Client Content and the consequences of posting or publishing such content. In connection with Client Content, Client affirms, represents, and/or warrants that: (i) Client owns or has the necessary licenses, rights, consents, and permissions to use and authorizes Paytronix to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Content to enable inclusion and use of Client Content in the Services; and (ii) Client has the written consent, release, and/or permission of each and every identifiable individual person in Client Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Client Content in the manner contemplated by the Services and the terms of this Agreement. By placing Client Content in the Services, Client hereby grants Paytronix a worldwide, non-exclusive, royalty-free, sublicense-able and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform Client Content in connection with the Services, including without limitation for promoting and redistributing Client Content (and derivative works thereof) in any media formats and through any media channels as contemplated by the Services. Client also hereby grants each user accessing Client Content a non-exclusive license to access Client Content, and to use, reproduce, distribute, display and perform Client Content as part of the Services. Client agrees that this license includes a right for Paytronix to make the Content available to third parties, consultants, or individuals with whom Paytronix has relationships for the provision of services, and to use the Client Content in connection with the provision of the Services.  Client understands that Paytronix, in performing the required technical steps to provide the Services, may (a) transmit or distribute Client Content over various public networks and in various media; and (b) make such changes to Client Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. Client agrees that this license shall permit Paytronix to take these actions. All items listed in Client Content must be legal for sale. And Paytronix will not be held responsible for any illegal sales.
4. Restrictions. Except as specifically permitted in this Agreement, Client shall not (a) use any of Paytronix's Proprietary Information to create any software or other materials (whether or not competitive with or similar to the Software), (b) reverse engineer or otherwise try to discover any source code or underlying ideas or algorithms of the Software, (c) sublicense, transfer or distribute the Software, (d) copy (except for reasonable backup or archive purposes) or modify any Software, (e) alter or remove any proprietary or legal notice contained on or in the Software, or (f) use the Software, or allow the transfer, transmission, export or re-export of all or any part of the Software, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction.
5. General Learning and Feedback. Client acknowledges and agrees that Paytronix retains the right to reuse, without any obligation to account, (i) the Software and all content at any webpage developed or hosted by Paytronix and which is made accessible to Client or its customers hereunder; (ii) its generalized knowledge, experience, and know-how (including processes, ideas, concepts, templates and techniques) that are related to the Software and Services or acquired during development thereof; and (iii) any comments, feedback, ideas, questions, designs, data or the like, regarding or relating to Paytronix Software or business submitted by Client to Paytronix, provided, in no event will Paytronix reuse any of Client's Account Information, Proprietary Information, marks or logos.

5. TERM 

Client and Paytronix agree that this Agreement is binding and non-cancelable for the Contract Term. Unless either party provides a written notice to the contrary at least ninety (90) calendar days prior to the end of the Contract Term, this Agreement will automatically renew for an additional binding, non-cancelable 12 months. Either party may terminate this Agreement if the other party breaches any term, condition or covenant hereof, and fails to fully correct or rectify the breach within thirty (30) days of notice from the other party.

6. PAYMENTS

1. Fees. Client agrees to pay Paytronix the one-time and recurring fees, in the amounts, at the times and subject to the conditions specified in Exhibit A. Unless otherwise stated, all invoices are due Net-30 terms.
2. Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (e.g., sales taxes, use taxes and value added taxes), and Client agrees to be responsible for payment thereof, exclusive of any tax based on Paytronix’s income.
3. Inflation. After the first year of the Contract Term and no more than once in any 12 month period, Paytronix may increase the recurring and transactional fees it charges Client, where such increase will be no more than the percentage increase in the CPI Index (as reported by the U.S. Bureau of Labor Statistics) from the CPI value shown as of the Effective Date (or the closest value reported) to the then most current available CPI value at the time of the increase. After the initial price increase (if any), any subsequent price increase(s) will be no more than the percentage increase in the CPI Index from the more recent CPI value used in the previous price increase calculation to the then most currently available CPI value at the time of the subsequent increase.

7. INDEMNITY

1. Third Party Claims. In respect of third party claims, Paytronix hereby agrees to indemnify, defend (at Client’s request) and hold harmless Client, its subsidiaries, franchisees, and/or affiliates and its and their respective owners, shareholders, partners, directors, officers, members, managers, employees and agents, and successors and assigns (the Client Indemnitees) from and against any loss, claim, damage or expense (including, but not limited to, reasonable attorneys’ fees and costs), directly or indirectly caused by Paytronix's breach of any of the terms of this Agreement or its gross negligence or willful misconduct under this Agreement; provided, that (a) the party seeking indemnification promptly gives Paytronix written notice thereof and reasonable cooperation, information, and assistance in connection therewith at Paytronix’s sole cost and expense and (b) Paytronix shall have sole control and authority to defend, settle or compromise such claim; provided, however, that Paytronix shall not admit fault or liability on the part of Client (other than the payment of money subject to this indemnity) without Client’s prior written consent and approval of the language contained in the agreement.  Paytronix shall have no obligation hereunder in respect of any settlement or compromise made without its written consent.  This obligation shall survive the termination or expiration of this Agreement or any determination that this Agreement or any portion hereof is void or voidable.
2. Data Breach. Without limiting the foregoing, in respect of third party claims, Paytronix agrees to indemnify, defend (at Client’s request) and hold harmless the Client Indemnitees from and against any loss, claim, damage or expense (including reasonable attorneys’ fees and costs) they suffer or incur that is directly or indirectly caused by a loss or unauthorized disclosure or transmission of identifiable data of the Client or its customers that requires notice, correction or other action under any applicable laws related to privacy, data security or data breach  to the extent attributable to Paytronix’s breach of this Agreement, negligence, violation of law or other misconduct (a “Security Incident”). Client shall indemnify, defend (at Paytronix’s request) and hold harmless Paytronix and its subsidiaries and affiliates and its and their respective owners, shareholders, partners, directors, officers, members, managers, employees and agents, and successors and assigns from and against any loss, claim, damage or expense (including reasonable attorneys’ fees and costs) they suffer or incur that is directly or indirectly caused by any Security Incident to the extent attributable to Client’s breach, negligence, violation of law or other misconduct.
3. Claims for Software or Services. Paytronix agrees to indemnify, hold harmless, and defend, at its sole cost and expense, any action or threatened action brought against Client to the extent it is based on a claim that the Software or Services provided hereunder infringe upon any patent, copyright, trademark, trade secret or other proprietary right of any third party enforceable in the U.S. or any country in which Services are provided within the Order Form; provided, that the party seeking indemnification promptly gives Paytronix written notice thereof and reasonable cooperation, information, and assistance in connection therewith. If an action against Client for any such claim has been asserted, or in Paytronix’s reasonable opinion is likely to be asserted, the Client agrees to permit Paytronix, at Paytronix’s option and expense, without limiting Paytronix's other obligations under this Section 7, either i) to procure for the Client the right to continue using the Software or Services; or ii) to modify the Software or Service so that it becomes non-infringing while still performing substantially in the same manner and with the same functions and quality levels as it previously performed; or iii) to replace the same with non-infringing material so that the material as modified or replaced performs substantially in the same manner and with the same functions and quality levels as the performance of the infringing material, so long as each of the foregoing do not result in significant interruption of Client’s business operations at any of its locations; or iv) if Paytronix, in its assessment, is unable to resolve the action with i), ii), or iii) above, Paytronix may terminate this Agreement or terminate Client’s license to the infringing portion or functionality upon written notice to Client and, after removal and return of all Paytronix Software, refund any pre-paid fees (for all, or for only the infringing portion or functionality, as applicable) pro-rated for the remainder of the period for which such fees have been pre-paid. Paytronix shall have sole control and authority to defend, settle or compromise such claim, provided that Paytronix shall have no authority to compromise or settle any claim, demand, suit or judgment on terms that would obligate the Client to pay any monetary amount or admit any liability or fault, or have an adverse effect on Client, or place any restriction on Client’s business or operations (other than any limitation on the use of the Software), without Client’s prior written consent. This obligation shall survive the termination or expiration of this Agreement or any determination that this Agreement or any portion hereof is void or voidable.
4. Claim Exceptions. Paytronix shall have no liability or obligation hereunder with respect to any claim based upon (a) any use of the Software or Services not strictly in accordance with this Agreement, (b) any use of the Software or Services in an application or environment or on a platform or with devices for which it was not designed or contemplated, (c) alterations, combinations or enhancements of the Software or Services not created by Paytronix, (d) that portion of the Software or Services modified by Paytronix to meet Client’s particular designs or instructions or to incorporate other Client contributions, (but such exception shall only apply until the earlier of such time that (i) Paytronix actively markets any such modified portion, or (ii) two or more other Paytronix clients utilize such modified portion), (e) indemnitee's continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Software after being provided modifications that would have avoided the alleged infringement or (f) any intellectual property right in which Client or any of their affiliates has an interest.
5. Acknowledgment. The foregoing states the entire liability of Paytronix, and the exclusive remedy of Client (and other indemnitees), with respect to any actual or alleged violation of intellectual property rights by the Software or Service, or any part thereof or by their use or operation.

8. WARRANTY AND DISCLAIMERS

1. Limited Warranty. Paytronix represents and warrants to Client (but not to any customer or other third party) that (i) Paytronix owns or has acquired rights to all proprietary interests in the Software necessary to grant the licenses set forth in this Agreement, (ii) the Software shall perform substantially in accordance with Paytronix’s written specifications for such Software, (iii) the Services will be provided in a professional and workmanlike manner, consistent with prevailing industry standards and practices, and (iv) Paytronix shall maintain reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Client’s Account Information.  Hosted Services, however, may be temporarily unavailable for scheduled maintenance, upgrades or unscheduled emergency repairs and other causes beyond Paytronix's reasonable control.
2. Exclusive Remedies. Client’s exclusive remedy, and Paytronix’s sole liability, (a) for breach of the warranty in Section 8.a.(ii) is that, if the problem is reported to Paytronix within 90-days of discovery, Paytronix will promptly repair or replace the Software or Service so that it satisfies the specifications or, if such repair or replacement is not feasible (as reasonably determined by Paytronix), refund the license fee paid by Client for the period for which the Software or Service was not working, and (b) for breach of the warranty in Section 8.a.(iii) is that Paytronix will reperform the Service so that it satisfies the warranty, and (c) for breach of the warranty in Section 8.a.(iv), is the indemnification provided under Section 7.b.
3. Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED ABOVE, THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.  PAYTRONIX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE AND SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, PAYTRONIX DOES NOT WARRANT THAT:  THE SOFTWARE OR SERVICES WILL MEET CLIENT'S REQUIREMENTS; OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR ERRORS CAN OR WILL BE FIXED.

9.  LIMITATION OF LIABILITY

NEITHER PARTY WILL BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OF DATA EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7(B), LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL OR CONSEQUENTIAL DAMAGES, OR (C) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF (I) IN THE CASE OF PAYTRONIX, THE AMOUNTS PAID TO PAYTRONIX HEREUNDER FOR THE PREVIOUS TWELVE (12) MONTHS, AND (II) IN THE CASE OF CLIENT, THE AMOUNT PAID OR PAYABLE BY CLIENT HEREUNDER FOR THE PREVIOUS TWELVE (12) MONTHS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. HOWEVER, NEITHER PARTY'S LIABILITY IS EXCLUDED OR LIMITED TO THE EXTENT UNENFORCEABLE BY APPLICABLE LAW, THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7, FOR ANY BREACH OF CONFIDENTIALITY SET FORTH IN SECTION 3, PROPRIETARY RIGHTS SET FORTH IN SECTION 4, OR ANY CLAIM INVOLVING WILFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE.

10. ADDITIONAL ITEMS

The parties acknowledge and agree they have read, understand and agree to be bound by the Service Level Agreement (“SLA”), the Data Processing Agreement (“DPA”), the Messaging Terms of Service (“MTOS”), all of which are incorporated herein and can be found on the Paytronix Terms and Services Website (Paytronix.com/INSERTLIN).

11.  ASSIGNMENT

Neither party will assign this Agreement without the express written consent of the other party except either party may freely assign this Agreement in connection with any merger, consolidation, reorganization, sale of all or a majority of its equity or substantially all of its assets or any similar transaction.  All the terms and conditions of this Agreement will be binding upon, will inure to the benefit of, and will be enforceable by the parties and their respective successors and permitted assigns.

12.  GOVERNING LAW; JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of Massachusetts, without regard to its conflicts of law provisions.  All notices hereunder will be in writing and effective upon receipt. Each party submits to the jurisdiction of the federal and state courts located in Massachusetts for adjudication of all claims and disputes that may arise hereunder.

13.  FORCE MAJEURE

Neither party shall be liable to the other for delays or failures in performing its obligations hereunder (other than failures to pay amounts due) caused by acts of God, natural disaster, acts of government, labor disputes or disturbances, material shortages or rationing, riots, acts of war, terrorism, governmental regulations, communication or utility failures, fires, casualties, or other causes beyond the reasonable control of that party, provided that the party seeking to be excused gives the other party prompt written notice thereof and uses its reasonable efforts to continue to so perform or cure.  In the event of such a force majeure event, the time for performance or cure will be extended for a period equal to the duration of the force majeure event.