1.1 “ASP Service” shall mean the Licensed Software and application services at one or more SHIFT4 facilities that enables a user to authorize, settle, recall, audit, and archive credit, debit and/or private label transactions, as more specifically described in Exhibit A.
1.2 “Basic Enhancements” means changes or additions to the Licensed Software,other than Error Corrections, which are functional improvements to existing features of the Licensed Software. Basic Enhancements include those improvements generally made available at no additional cost to SHIFT4 clients.
1.3 “Credit Card Processor” is an independent company that provides computer processing and communication services to provide connectivity to the various card associations and banks, for authorization and settlement of credit cards. Credit Card Processors work for the merchant bank.
1.4 “Documentation “shall mean all specifications, manuals, documents, drawings, electronic media and other tangible materials pertaining to the ASP Service.
1.5 “Error”shall mean any failure of the Licensed Software to substantially conform to the specifications in the Documentation delivered with the Licensed Software or the current documentation for the Licensed Software.
1.6 “Error Corrections” means:
- (i) a software modification or addition that, when made or added to the Licensed Software, establishes material conformity to the specifications in the Documentation delivered with the Licensed Software or the current documentation for the Licensed Software; or
- (ii) a procedure or routine that, when observed in the regular operation of the Licensed Software, eliminates the practical adverse effect of an Error on the use of the Licensed Software.
1.7 “Exhibit”shall mean those certain documents attached hereto and incorporated herein by reference as Exhibit “A”, “B”, etc.
1.8 “Hardware”shall mean any device and related software not manufactured by SHIFT4or INNQUEST SOFTWARE.
1.9 “Licensed Software” shall mean the SHIFT4 computer software, which enables a user to authorize and settle credit, debit and/or private label transactions, as more specifically described in Exhibit A.
1.10 “Merchant Service Provider” is a merchant bank, an agent for a merchant bank, or an independent sales organization for a merchant bank that provides CLIENT with an account to accept credit cards and provides certain services related thereto.
1.11 “Regulation Changes” are modifications to the ASP Service to enable it to authorize and settle transactions in a way to allow the lowest possible interchange rates for the type of transaction settled base don regulations in effect at the time.
1.12 “Release” shall mean a new version of any portion of the ASP Service thatSHIFT4 markets independently of the ASP Service or which constitutes the next generation of the ASP Service.
1.13 “Third Party Interface” is computer software not written by SHIFT4,which uses formats and processes included in the Application Program Interface (API) specification supplied by SHIFT4.
1.14 “Third Party Software” shall mean Software not written by SHIFT4 for the use at CLIENT’S various physical points of sale, on the Internet,or via the Telephone.”
1.15 “Transactions” are any transmission from $$$ ON THE NET® to a processor. In the case of private label cards, a Transaction is any action by$$$ ON THE NET® which sets up a private label card, puts money on or takes money off a stored value card, charges an amount to a room/folio, or charges money to a stand-in credit card.
2. ASP Service and Payment
2.1 SHIFT4 agrees to supply the ASP Service to CLIENT, as further described in Exhibit A.
2.2 CLIENT agrees to pay:
- (i) the listed price(s), as further described in Exhibit A, and all applicable fees as set forth in this Agreement;
- (ii) all fees as described and applicable in Exhibits D and/or E
- (iii) any sales, excise, or use tax, which must be collected under state or federal law; and
3. Infrastructure Requirements
3.1 CLIENT agrees that the infrastructure required for use of the ASP Service, as described in Exhibit B (“Infrastructure Requirements”),is not included in the ASP Service and will be provided by CLIENT prior to the installation of the ASP Service (the “Installation”).
3.2 CLIENT further agrees that should CLIENT fail to meet the Infrastructure Requirements before Installation, CLIENT may incur additional costs for hardware, for extending the Installation, for future training or for additional installation services.
4. Grant of Rights
4.1 During the term of this Agreement, and subject to the terms and conditions hereof, SHIFT4 hereby grants to CLIENT and CLIENT hereby accepts, a nonexclusive and nontransferable license to:
- (i) use and access the ASP Service (including the Licensed Software in object code only); and
- (ii) use the Documentation as provided in Adobe® Portable Document Format (PDF) on the electronic media that includes the Licensed Software or as found on www.shift4.com.
4.2 CLIENT’S use of the Licensed Software is limited to acts that are essential steps in the use of the Licensed Software as described in the Documentation. CLIENT acknowledges and agrees that SHIFT4 retains all right, title,and interest in the Licensed Software. No right to use, copy, display,or print the Licensed Software or Documentation, in whole or in part, is granted, except as expressly provided in this Agreement.The license grants in Section 4.1 are contingent upon CLIENT being current in all accounts with INNQUEST SOFTWARE and/or SHIFT4.
5. Protection of Licensed Software and Services
5.1 CLIENT may not do any of the following:
- (i) Download or transmit the Licensed Software electronically (either by direct connection or telecommunication transmission) from one computer to another, except as may be specifically allowed in using the Licensed Software on a computer network, or from an authorized SHIFT4 Electronic Fulfillment System;
- (ii) rent, lease, sub-license, time-share, lend, or transfer the ASP Service or Documentation to any third party; c. modify, alter, adapt merge, de-compile, or reverse-engineer the Licensed Software;
- (iii) copy or otherwise reproduce the Licensed Software in whole or in part, provided that CLIENT may make one(1) back-up copy thereof for security and archive purposes; OR
- (iv) remove any SHIFT4 copyright or trademark notice.
5.2 CLIENT hereby acknowledges and agrees that the Licensed Software and Documentation constitute and contain valuable proprietary products and trade secrets of SHIFT4. Accordingly, CLIENT agrees to treat (and take precautions to ensure that its employees treat) the Licensed Software as confidential in accordance with the confidentiality requirements and conditions set forth in Section 9 (“Confidentiality”) below.
The term of this Agreement granted pursuant to Section 4 (“GRANTOF RIGHTS”) above is for a three (3) year period of time (“Term”)commencing on the Effective Date of this Agreement (Initial Term)unless fees are not paid or unless sooner terminated in accordance herewith. Unless CLIENT has notified INNQUEST in accordance with Section 15.12 (“Notices”) of its intention not to renew at least 30 days prior to the end of a Term, the Agreement will automatically renew for an additional one (1) year period (“Renewal Term”) to insure un-interrupted use of the Licensed Software and/or Service covered by this Agreement. At any time after the Initial Term, CLIENT can terminate this Agreement with 60 days written notice in accordance with Section 15.12 (“Notices”) of the Agreement. At any time, upon written notice in accordance with Section 15.12 (“Notices”) INNQUEST can terminate this Agreement if CLIENT is not current in all accounts with INNQUEST.
7. Installation and/or Setup
The installation and/or setup of the ASP Service shall be in accordance with Exhibit C.
8. Maintenance and Support
SHIFT4 shall provide maintenance and support for the ASP Service as set forth in Exhibit A. INNQUEST SOFTWARE does not provide support for the ASP Service beyond installation and roomMaster 2000/iQ-POS interface issues.
9.1 From time to time, SHIFT4 or CLIENT may find it necessary to provide to the other party certain confidential information that the disclosing party considers proprietary. Such information shall be identified in writing as confidential by the disclosing party before disclosure to the recipient (the “Confidential Information”).The parties agree that the Licensed Software, including algorithms and Documentation, are expressly designated as Confidential Information without any such marking requirement. For a period of five (5) years from the Effective Date, each party agrees to keep confidential all Confidential Information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential information) provided,however, that information will not be deemed Confidential Information hereunder if such information:
- (i) is now or becomes part of the public domain through no fault of the receiving party,
- (ii) was already known by the receiving party at the time of disclosure,
- (iii) is independently developed by the receiving party without the use of the other party’s Confidential Information, or
- (iv) is lawfully obtained from the third party.
9.2 If the receiving party is subpoenaed or ordered by any court or governmental agency to disclose Confidential Information of the other party,it will provide prompt written notice to the other party to allow such party to seek a protective order or confidential treatment of such information. Each party will take reasonable measures to inform those of its employees, agents, or contractors that have access to Confidential Information of the confidential and proprietary nature thereof and the terms of this Agreement.
10. Limited Warranty
10.1 Any and all warranties are provided by SHIFT4.
10.2 SHIFT4 warrants that the ASP Service shall substantially conform to the functional performance specifications set forth in the latest Documentation as supplied to CLIENT or as available on www.SHIFT4.com.
10.3 SHIFT4 warrants, within thirty (30) days of receipt of detailed, transaction by transaction, downgrade reports from CLIENT, to supply CLIENT with the reason for the downgrades whether it is SHIFT4’S issue,the credit card processor’s issue or CLIENT’S issue. CLIENT agrees to assist SHIFT4 by promptly supplying transaction history and operational procedures as requested by SHIFT4. SHIFT4 warrants correcting anySHIFT4 setup or Licensed Software issue within 14 days of the date that a SHIFT4 issue is revealed by SHIFT4.
10.4 SHIFT4 warrants that the $$$ ON THE NET® Application Service will have an uptime availability as described in Section 5 of Exhibit A to this Agreement.
10.5 SHIFT4 warrants that any physical associated media and physical Documentation supplied pursuant to this Agreement will be free of defects in materials and workmanship for a period of sixty days from the purchase date. If SHIFT4 receives notification within the warranty period of defects in materials or workmanship, and such notification is determined by SHIFT4 to be correct, SHIFT4 will replace the defective magnetic media or Documentation. BEFORE ANY SHIFT4 PRODUCT IS RETURNED, INNQUESTSOFTWARE MUST BE CONTACTED FOR PROPER RETURN PROCEDURES.
10.6 Notwithstanding the warranty provisions set forth in this Section 10 (“LIMITEDWARRANTY”) above, all of SHIFT4’S obligations with respect to such warranties shall be contingent on CLIENT’S use of the ASP Service in accordance with this Agreement, and in accordance withSHIFT4’S instructions as provided by SHIFT4 in the Documentation or otherwise. SHIFT4 is not responsible for the warranty of any software or hardware not produced or manufactured by SHIFT4.
11. Disclaimer Of Warranties
Except those expressly described in this agreement, SHIFT4 specifically disclaims all other warranties, express or implied, including but not limited to, any implied warranty of merchantability or fitness for a particular purpose. SHIFT4 does not warrant that the ASP service will be uninterrupted, error free or completely secure.
12. Limitation Of Liability And Remedy
12.1 InnQuest Software acts only as the seller and billing agent for SHIFT4’s ASP Service and assumes no liability for the CLIENT’s use of the ASP Service.
12.2 Except as otherwise provided for in this agreement, SHIFT4’s entire liability and client’s exclusive remedy for any breach of the warranties set forth in section 10 or any service defect or failure shall be limited to:
- (i) The reperformance of services;
- (ii) Providing error corrections; or
- (iii) Replacement of defective associated media or documentation. In no event shall SHIFT4 or its vendors or licensors be liable for any special, incidental, consequential or indirect damages, including without limitation, loss of profit or revenue, cost of substitutes, lost savings or damages resulting from loss of use of equipment or loss of content or data, however caused and regardless of the theory of liability, even if SHIFT4 has been advised of the possibility of such damages.
12.3 In no event will SHIFT4’s liability for any damages to client or any other person ever exceed the fees paid by client to shift4 hereunder for the prior twelve (12) month period; provided, however that SHIFT4’sindemnity liability (but not its obligation to defend) under section13 (“indemnification”) shall be limited to two hundred percent (200%) of said amounts paid by the client to SHIFT4. The limits set forth in the preceding sentence includes, but are not limited to, inaccurate approvals or the loss or inaccuracy of any data transmitted to the credit card processor. SHIFT4’s limitation of liability is cumulative with all shift4’s applicable expenditures being aggregated to determine satisfaction of the limit, and client releases SHIFT4 from all obligations, liability, claims, or demands relating to the ASP service in excess of the limitation provided for in this section 12.
12.4 SHIFT4is not liable for ANY loss of CLIENT’S data. CLIENT understands and agrees that SHIFT4 has provided CLIENT with back-up functionality and that CLIENT bears 100% responsibility for the protection of their own data whether used with Licensed Software on-site or in conjunction with the $$$ ON THE NET® service.
12.5 SHIFT4is not liable for ANY interchange fees for downgraded credit card transactions. CLIENT understands and agrees that only CLIENT and CLIENT’S Merchant Service Provider has access to the reports of downgraded transactions and SHIFT4 has no access to them. CLIENT further understands and agrees that setup at SHIFT4 and at the Credit Card Processor selected by the CLIENT’S Merchant Services Provider can effect the downgrade of transactions. CLIENT further understands and agrees that CLIENT’S own operation of the Licensed Software and CLIENT’S point of sale software can affect downgrades.
13.1 SHIFT4 shall indemnify and hold harmless CLIENT from any claim or action of a third party alleging that the performance of the ASP Service infringes a patent, trade secret, copyright, or trademark held by such party (hereinafter “Infringement Claims”).SHIFT4 shall pay all resulting costs, damages and reasonable attorney fees, provided:
- (i) SHIFT4 is notified promptly in writing of an Infringement Claim;
- (ii) SHIFT4 has sole control over its defense or settlement, and
- (iii) CLIENT fully cooperates with SHIFT4 in the defense of the same.
13.2 Following notice of an Infringement Claim, SHIFT4 may at its expense, without obligation to do so, procure for CLIENT the right to continue to use the allegedly infringing Licensed Software, or any portion thereof or, without obligation to do so, may replace or modify the Software,or any portion thereof, to make it not infringing. If SHIFT4 elects to replace or modify the Licensed Software, or any portion thereof,such replacement shall meet substantially the specifications as provided or referenced in the original functional specifications for any subsequent release of the product which CLIENT has obtained pursuant hereto.
14.1 This Agreement may be immediately terminated prior to its scheduled expiration:
- (i) in the event that either party defaults in the performance of any of its material obligations under this Agreement, and such default is not corrected within thirty (30) days following its receipt of written notification of such default from the non-breaching party;
- (ii) upon written notice to the other party, if the other party becomes insolvent, has a proceeding commenced against it for relief under bankruptcy or similar laws that is not dismissed within sixty(60) days, or has a receiver appointed to handle its assets or affairs;
- (iii) upon written notice to the other party, if the other party fails to strictly comply with the provisions of Section 9 (“CONFIDENTIALITY”);
- (iv) upon written notice to CLIENT, if:
- (a) CLIENT makes an assignment in violation of Section 15.4 (“ASSIGNMENT”);
- (b) CLIENT materially breaches Sections 4 (“GRANT OF LICENSE”)or 5 (“PROTECTION OF LICENSED SOFTWARE AND SERVICES”);
- (c) CLIENT is not current in all accounts with SHIFT4 or INNQUESTSOFTWARE; or
- (d)any third party who is a competitor of SHIFT4 directly or indirectly acquires or gains control of all or substantially all of CLIENT’S assets.
- (v) Upon written notice and upon payment of all outstanding amounts due plus the minimum times the number of months left in the Agreement.
14.2 Upon the effective date of the expiration or termination of this Agreement:
- (i) SHIFT4shall cease providing the ASP Service;
- (ii) all licenses provided hereunder shall terminate;
- (iii) the payment obligations of CLIENT under this Agreement will become due immediately;
- (iv) within thirty (30) days from such date, each party shall return all Confidential Information (as defined above) of the other party and will not retain any copies of the same except as required by law;
- (v) CLIENT shall cease and desist all use of the ASP Service and shall return to SHIFT4 all full or partial copies of the Licensed Software and Documentation in CLIENT’S possession or under its control;and
- (vi) Sections9 (“CONFIDENTIALITY”), 12 (“LIMITATION OF LIABILITYAND REMEDY”), 13 (“INDEMNIFICATION”), and 15 (“MISCELLANEOUS”)shall survive termination of this Agreement.
15.1 Governing Law. This Agreement shall be construed, interpreted,and governed by the laws of the State of Nevada, excluding its conflict of law rules. Use, duplication, or disclosure by the U.S. Government of the computer software and documentation in this package shall be subject to the restricted rights applicable to commercial computer software (under DFARS 52.227-7013.)
15.2 Force majure. Neither party or any of its subsidiaries will be liable for any failure or delay in performing an obligation under this Agreement that is due to causes beyond its reasonable control such as natural catastrophes, governmental acts or omission, laws or regulations, labor strikes or difficulties, transportation stoppages or slowdowns, or the inability to procure parts or materials.
15.3 Export Controls. CLIENT agrees that it will not, without prior written consent of SHIFT4, export directly or indirectly, the Licensed Software or any portion thereof to anyone outside the United States or outside the national jurisdiction in which the CLIENT Site is located. CLIENT will not export or transfer, whether directly or indirectly, the Licensed Software, or any portion thereof, or any system containing the Licensed Software to anyone outside the United States without first complying with all export controls that may be imposed on the Licensed Software by the U.S. government or any country or organization of nations within whose jurisdiction CLIENT operates or does business.
15.4 Assignment.This Agreement may be assigned or transferred in whole or in part by SHIFT4. CLIENT may not assign this Agreement or any of its rights,duties, or obligations under this Agreement, without the prior written consent of SHIFT4, which consent shall not be unreasonably withheld .Should CLIENT’S assignment be to any entity, which does not have50% or more common ownership or where re-setup of the software is involved, a re-license fee of 25% of the cost of the software will apply.
15.5 Jurisdiction/ Venue. Any judicial proceeding brought against any of the parties to this Agreement on any dispute arising out of this Agreement or any matter related hereto may be brought in the courts of the State of Nevada, and, by execution and delivery of this Agreement, each of the parties to this Agreement accepts the exclusive jurisdiction of such courts, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement.
15.6 Entire Agreement. This document, including the Cover Sheet and Master Service Agreement (and its Exhibits) constitutes the entire agreement between the parties and supersedes all prior or contemporaneous negotiations and agreements, whether written or oral, addressing the subject matter of this Agreement.
15.7 Amendment and Changes. No amendment, modification, supplement, or other purported alteration of this Agreement shall be binding on the parties unless it is in writing and is signed on behalf of the parties by their own authorized representatives.
15.8 Counterparts.This Agreement may be executed in any number of counterparts, each of which shall be an original as against any party whose signature appears thereon and all of which together shall constitute one and the same instrument.
15.9 No Waiver.The failure of any party to enforce any of the provisions of this Agreement shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions.
15.10 Severability.If any provision of this Agreement is found void or unenforceable,it will not affect the validity of the balance of this Agreement,which shall remain valid and enforceable according to its terms.
15.11 Attorneys’ Fees. The prevailing party in any suit brought to enforce a provision of this Agreement shall be entitled to an award of reasonable costs and attorneys’ fees.
15.12 Notices.Any notices required or permitted under the terms of this Agreement shall be given in writing to the appropriate party at the address specified on the cover page of this Agreement, or at such other address as the party shall specify in writing. Such notices shall be made by personal delivery, fax, certified or registered mail,return receipt requested, and shall be deemed to be received by the addressee upon personal delivery: one (1) business day after sending if sent by Federal Express or other similar overnight delivery service; the date of transmission if sent by fax, and; three (3)business days after mailing if sent by certified or registered mail,with postage prepaid.
15.13 No Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties. Except as expressly set forth; no party by virtue of this Agreement is authorized as an agent, employee, or legal representative of any other party, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
15.14 Further Assurances. Each party agrees to cooperate fully with the other party and to execute such further instruments, documents, and agreements,and to give such further written assurances as may be reasonably requested by the other party, to better evidence and reflect the transactions described in and contemplated by this Agreement, and to carry into effect the intents and purposes of this Agreement.
15.15 Taxes and fees. CLIENT agrees to pay any sales tax, excise tax, use tax,or vendor application fees, which must be collected or are accessed under state, federal or tribal law. A processing fee of $100 will be charged for completion of any forms or applications related to fees collected under state or tribal law.