This Payment System Agreement (this "Agreement") is made, effective as of the date set forth below (the "Effective Date") by and between Braintree Payment Solutions, LLC, an Illinois limited liability company, located at 833 West Jackson Blvd. Chicago, IL 60607 ("Braintree") and the entity and/or individual who enters into this Agreement ("Client"), each a "Party" and collectively, the "Parties." This Agreement sets out the terms and conditions under which Client may utilize the Payment System as defined below. By clicking on the "I AGREE" button at the end of this Agreement, or by continuing to use the Payment System, this Agreement becomes a legally binding contract between Braintree and Client.
WHEREAS, Braintree provides point of sale software (payment gateway), equipment and related goods and services (the "Payment System"); and
WHEREAS, Client wishes to obtain rights to use the Payment System and Braintree wishes to provide the Payment System to Client so that Client may utilize the Payment System on the terms and conditions more specifically set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.01. Services. Braintree will provide Client with access to all available portions of the Payment System and permit Client to utilize the Payment System in accordance with terms and conditions set forth herein.
1.02. Limited License. Braintree hereby grants to Client a limited, revocable (but only as provided herein), worldwide, nonexclusive, non-sublicensable, and non-transferable license during the term of this Agreement, under Intellectual Property (as defined herein) rights owned or licensed by Braintree, to access and use the Payment System software provided however that:
(a) such license is subject to all obligations and restrictions imposed on Client in this Agreement;
(b) such license extends only to Client's employees and contractors, but only to the extent that such employees and contractors use the Payment System for the sole purpose of collecting payments on the behalf of Client, and for no other purpose whatsoever, further provided that any contractors using the Payment System shall have executed an agreement with Client prior to any such use that is no broader than the license granted hereunder and is no less protective of Braintree's (and its licensors') Intellectual Property (as defined herein) rights in the Payment System and of Braintree's Confidential Information (as defined herein) as are the terms of this Agreement;
(c) such license is limited to Client's use of the Payment System solely to perform the functions specified herein, and in compliance with the terms and conditions set forth herein, and
(d) while exercising such license, Client shall treat the Payment System as Braintree's Confidential Information under this Agreement.
1.03. Limitations on Rights Granted. Client shall not reproduce, and shall not cause or permit any third party to reproduce or (except as expressly provided under Section 1.02(b) hereof) use, the Payment System. Client shall not, and shall not cause or permit any third party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Payment System, or otherwise apply any procedure or process to the Payment System in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Payment System or any algorithm, process, procedure or other information contained in the Payment System. Client may not rent, lease, assign, sublicense, transfer, modify, alter, or time share the Payment System. Client shall not gain or attempt to gain unauthorized access to any portion of the Payment System, or its related systems or networks for use in a manner that would exceed the scope of the license granted in Section 1.02, or facilitate any such unauthorized access for or by any third party.
1.04. Independent Contractors. The relationship of Braintree and Client is that of independent contractors. Neither Client nor its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of Braintree, nor do they have any authority to bind Braintree by contract or otherwise to any obligation. They will not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
1.05. Compliance With Laws.
(a) Client will comply with the bylaws, manuals, operating rules, identification standards, manuals, policies, procedures, rules and regulations of the Associations (defined below) and all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Payment System. Client agrees to comply with any federal or regional Automated Clearing House rules applicable to automatic and electronic transfer of funds including without limitation, laws, regulations, and rules governing correct authorizations by consumers and businesses, disclosures and notices required in connection with electronic funds transfer, and all necessary waivers and releases. Client has the sole responsibility to verify Braintree's list of merchant card processors to be used under terms of this Agreement to determine if Braintree can properly transmit the necessary credit card information to Client's credit card processor. Client acknowledges that Braintree's list can be modified from time to time and must be verified by Client prior to being set up with Braintree. Client has the sole responsibility for obtaining the proper authorization from Client's own credit card processor and/or settlement bank to be able to use Client's merchant account for key entry transactions and transactions being processed over the internet or online. Client shall be solely responsible for chargebacks, credits, returns, disputes and all costs associated with data transmissions. Client will be solely responsible to obtain accurate credit card and ACH information and authorization from its customers, and will transmit said information to Braintree via the internet or service originally agreed upon by all parties.
(b) Braintree agrees to comply with the Payment Card Industry ("PCI") Data Security Standard ("DSS") of Visa and MasterCard. Client can verify Braintree's compliance with the PCI DSS by viewing the Global List of PCI DSS Validated Compliant Service Providers on Visa's website at http://usa.visa.com/merchants/risk_management/cisp.html and given the availability of this list from Visa Braintree shall not have any duty to provide any other information to Client regarding Braintree's compliance with the PCI DSS. Braintree will comply with all applicable federal and state laws in performing its duties hereunder and in any of its dealings with respect to the Payment System.
1.06. Access. Client understands and agrees that, if applicable, it has contracted with a third party provider that may have access to the Payment System. Client hereby grants the third party provider access and authorizes Braintree to take all reasonable steps to provide such access. All actions taken by Braintree in this regard will be a part of the Payment System for purposes of this Agreement and Braintree shall have no liability under this Agreement for such access.
2.01. Providing Payment System. During the term of this Agreement, Braintree shall use its commercially reasonable efforts to provide Client with access to the Payment System and maintain the Payment System in an uninterrupted and error-free fashion consistent with its practices in effect as of the date of this Agreement. However, the parties acknowledge that the Payment System is a computer network based service which may be subject to outages and delay occurrences. In such an event, but without limitation of Sections 5.03 and 5.04 hereof, Braintree shall use its commercially reasonable efforts to diligently and timely remedy material interruptions. Braintree will not be liable in any manner for any interruptions, outages, delay occurrences, errors, viruses or defects relating to the Payment System, or for the actions or inactions of third party service providers.
3.01. Fees in General. Client shall pay fees to Braintree as set forth in the application for the Payment System, as set forth on the pricing sheet(s) provided to Client by Braintree or as disclosed to Client in any other documents or materials provided by Braintree.
3.02. Fees for Payment System. Client agrees to pay Braintree for the Payment System via deduction of all applicable fees directly from Client's bank account. Client shall provide Braintree with all necessary bank account, routing and related information. Braintree will deduct automatically all such fees and charges on the first business day of each month for the preceding month's services. Interest shall accrue at the lesser of 1.0% per month or the maximum amount permitted by applicable law ("Late Fee") for any fees that remain unpaid beyond any due dates. In the event of a dispute made in good faith as to the amount of fees, Client agrees to remit payment on any undisputed amount(s); and, the Late Fee shall not accrue as to any disputed amounts unless not paid within thirty (30) calendar days after said dispute has been resolved by both parties.
4.01. Term. The term of this Agreement shall continue on until terminated as set forth herein. Notwithstanding any other provisions in this Agreement, either Party may terminate this Agreement, without cause, by providing the other Party with thirty (30) days prior written notice, except in the case of a material breach of this Agreement by Client, in which case Braintree shall have the right to terminate this Agreement on one (1) day prior written notice to Client.
4.03 Return of Credit Card Information. Upon any termination of this Agreement, Braintree agrees, upon written request from Client, to use its commercially reasonable efforts to provide the Client or any third party provider identified by Client, in each case as soon as reasonably practicable, with any available credit card information relating to Client's customers in Braintree's possession subject to the following conditions: (i) Client must provide Braintree with proof that Client or the third party provider is in compliance with the PCI DSS standards by giving Braintree a certificate or report on PCI DSS compliance from a qualified provider and any other information reasonably requested by Braintree (ii) the transfer of such information must be compliant with the latest version of the PCI DSS Standard and (iii) the transfer of such information must be allowed under the applicable Association bylaws, manuals, operating rules, identification standards, manuals, policies, procedures, rules and regulations, and under state laws, federal laws and any other applicable laws, rules or regulations.
5.01. Confidential Information. The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including, without limitation, where Braintree is the disclosing party information concerning the Payment System and the know how, technology, techniques, or business or marketing plans related thereto (collectively, the "Confidential Information") all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party's obligations under this section or by breach of a third party's confidentiality obligations to the disclosing party and as can be demonstrated by documented evidence; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party's confidentiality obligations to the disclosing party and as can be demonstrated by documented evidence; or (iv) is independently developed by the receiving party without use of, reliance on or reference to, any information provided to the receiving party by the disclosing party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party's Confidential Information; (ii) not use the disclosing party's Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party's express prior written consent; (iii) disclose the disclosing party's Confidential Information, in whole or in part, only to employees and agents of the receiving party who need to have access thereto for the receiving party's internal business purposes and in accordance with the terms of this Agreement; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure and unauthorized use. Upon request, the receiving party shall cooperate and assist the disclosing party in preventing or remedying any unauthorized use or disclosure of the Confidential Information. Upon request of Braintree or upon termination of this Agreement, at Braintree's instruction Client will destroy or promptly deliver to Braintree all materials that contain any Confidential Information of Braintree and, in the case of destruction, provided Braintree with confirmation of the destruction thereof.
5.02. Indemnification. Client agrees to indemnify, defend, and hold harmless Braintree, its affiliates and its and their officers, directors, employees and agents (collectively, the "Braintree Parties") from and against any loss, liability, damage, penalty or expense (including, without limitation, attorneys' fees, expert witness fees and cost of defense) it or they may suffer or incur as a result of: (i) any failure to comply or any breach of, Client or any officer, director, employee, agent or affiliate of Client with the terms of this Agreement; (ii) any warranty or representation or covenant made by Client hereunder being false or misleading or breached; (iii) any of the Braintree Parties' use of any data (including, without limitation, collection data) and entries provided by Client (or on Client's behalf) in the performance of Braintree's obligations to the Client under this Agreement; (iv) any negligence or willful misconduct of Client or its officers, directors, employees, agents or affiliates; (v) any representation or warranty made by Client or any officer, director, employee, agent or affiliate of Client to any third party.
5.03. Disclaimer of All Warranties. THE PAYMENT SYSTEM IS PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER, WHETHER EXPRESS OR IMPLIED. BRAINTREE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO CLIENT AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY BRAINTREE PARTIES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF BRAINTREE'S OBLIGATIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BRAINTREE DOES NOT WARRANT THAT THE PAYMENT SYSTEM WILL BE UNINTERRUPTED, FREE OF ERRORS, VIRUSES OR DEFECTS, OR AVAILABLE WITHOUT DELAY, OR THAT ERRORS OR DEFECTS ARE CAPABLE OF BEING REMEDIED OR CORRECTED.
5.04. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO CLIENT'S OBLIGATIONS UNDER SECTION 5.02, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PAYMENT SYSTEM, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, BUSINESS OPPORTUNITIES, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE BRAINTREE PARTIES' TOTAL LIABILITY TO CLIENT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE LESSER OF (I) AMOUNTS PAID BY CLIENT UNDER THIS AGREEMENT AND (II) ONE THOUSAND DOLLARS ($1,000.00), IN EACH CASE, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE.
5.05. Taxes. Client shall pay, indemnify and hold Braintree harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on Braintree's income, and (ii) all government permit fees, customs fees and similar fees which Braintree may incur with respect to this Agreement. Such taxes, fees and duties paid by Client shall not be considered a part of, a deduction from, or an offset against, fees due to Braintree hereunder.
5.06. Authority; Organization. Client represents and warrants to Braintree as follows:
(a) Client has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Client in accordance with its terms and no provision requiring Client's performance is in conflict with its obligations under any charter or any other agreement (of whatever form or subject) to which Client is a party or by which it is bound.
(b)Client is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which Client's business make such authorization necessary or required.
5.07. Trademarks. During the term of this Agreement and subject to the limitations in this Agreement, Braintree grants Client a nonexclusive license to display on Client's websites and portals Braintree's trademarks identified in Section 1 of the attached Exhibit A (the "Braintree Trademarks") solely in conjunction with Client's use of the Payment System as permitted under this Agreement and in accordance with the Braintree Trademark Use Guidelines located at www.braintreepayments.com/TMguidelines, and as may be modified from time to time by Braintree (the "Guidelines"). Client agrees to maintain and adhere to the standards of quality, specifications and other requirements set forth in this Agreement and in the Guidelines. Braintree does not grant to the Client hereunder any other rights in the Braintree Trademarks or in any other trademark, trade name, service mark, business name or goodwill of Braintree, and Client acknowledges that all use of the Braintree Trademarks and the goodwill generated thereby will inure to the exclusive benefit of Braintree. To ensure proper quality control and protection of the Braintree Trademarks, Braintree and its authorized agents and representatives shall have the right to inspect samples of materials bearing the Braintree Trademarks and to request such samples for inspection. Upon expiration or termination of this Agreement, Client will immediately cease all display, advertising and use of all of the Braintree Trademarks.
5.08. Intellectual Property. "Intellectual Property" means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patent applications, patentable inventions, computer programs, and software; (iii) data and databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including, without limitation, software programs; (vi) mask works; (vii) domain names; and (viii) any and all other intellectual or proprietary rights. The rights owned by a party in its Intellectual Property shall be defined, collectively, as "Intellectual Property Rights." Other than the express licenses granted by this Agreement, Braintree grants no right or license to Client by implication, estoppel or otherwise in or to the Payment System or in or to any Intellectual Property Rights of Braintree. Each party shall retain all ownership rights, title, and interests in and to its own products and services (including, without limitation, in the case of Braintree, in the Payment System) and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein. Braintree (and not Client) shall have the sole right, but not the obligation, to pursue trademark, copyright and patent protection, in its sole discretion, for the Payment System and any Intellectual Property Rights incorporated therein. Client will cooperate with Braintree in pursuing such protection, including, without limitation, executing and delivering to Braintree such instruments as may be required to register or perfect Braintree's interests in any Intellectual Property Rights and any assignments thereof. Client shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from Braintree in connection with this Agreement.
5.09. Data Security Compliance. Client agrees to comply with privacy and security requirements under the Payment Card Industry Data Security Standard ("Association Requirements") with regards to Client's use, access, and storage of certain credit card non-public personal information ("Cardholder Information") on behalf of Braintree. Visa, MasterCard, Discover, American Express, any ATM or Debit Networks, and the other financial service card organizations shall be collectively known herein as "Associations." Client shall comply with its obligations under any applicable state or federal law or regulations as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of Cardholder Information. Client agrees that it shall protect the privacy of Cardholder Information to at least the same extent that Braintree must maintain that confidentiality under the Association Requirements or applicable law. Client agrees to ensure that any agent, including, without limitation, a subcontractor, to whom it provides Cardholder Information received from, or created or received by Client on behalf of Braintree, agrees to the same restrictions and conditions that apply through this Agreement to Client with respect to such information. Upon five (5) business days notice or immediately upon any unauthorized access to, use or disclosure of any Cardholder Information, Braintree may at its discretion, conduct an on-site audit and review of Client's procedures and systems.
5.10. Data Accuracy. Client shall provide Braintree with data necessary for the electronic funds transfer ("collection data") in the form and at the times prescribed by Braintree and shall make periodic checks and updates necessary to cause the collection data to be current and accurate at all times. The format and schedule requirements for delivery of collection data by Client may be changed by Braintree during the term of this Agreement, and Client shall deliver collection data in conformity with changed requirements set forth from time to time by Braintree. Client warrants to Braintree that all data and entries delivered to Braintree by Client will (a) be correct in form, (b) contain true and accurate information, (c) be fully authorized by the consumer or business, and (d) be timely under the terms and provisions of this Agreement.
5.11. Merchant Account Services. In the event Client applies for and is approved for merchant account services, Client's use of such services shall be governed by the terms of the applicable merchant account services agreement. Merchant account services are not covered by this Agreement.
5.12. Compliance with Export Controls. Client understands and acknowledges that Braintree is subject to regulation by agencies of the U.S. government, including, without limitation, the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries, entities, and individuals. Any and all obligations of Braintree to provide any products or services hereunder shall be subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including, without limitation, the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations ("EAR") issued by the Department of Commerce, International Trade Administration, Bureau of Export Administration ("BXA"). Client agrees not to export or re-export any Intellectual Property Rights of Braintree (including, without limitation, the Payment System) (collectively, the "Braintree Intellectual Property") in violation of any such restrictions, laws or regulations. Unless all required permits and/or approvals have been obtained, Client shall not cause, approve or otherwise facilitate others such as agents, subsequent purchasers, customers or any other third parties to export or re-export any Braintree Intellectual Property. Client agrees not to distribute or supply any Braintree Intellectual Property to any person or entity if Client believes that such person intends to re-export or otherwise to take any Braintree Intellectual Property or to use any Braintree Intellectual Property outside of the United States without having all required permits and approvals. The Braintree Intellectual Property and the underlying information or technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the U.S. has embargoed goods; or, (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders.
5.13 Injunctive Relief. The Parties agree that any breach by the receiving party or any of its officers, directors, employees or agents of any provision of Section 5.01 may cause immediate and irreparable injury to the disclosing party and that, in the event of such breach, the receiving party will be entitled to immediate injunctive and other equitable relief, without the necessity of posting a bond or other security or showing actual monetary damages. Nothing in this Section 5.13 will be construed as prohibiting either party from pursuing any other remedies available to it for such breach or threatened breach.
6.01. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
6.02. Drafting. No provision of this Agreement shall be construed against any Party merely because such Party or its counsel drafted or revised the provision in question. All Parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the Parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.
6.03 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented to such term or provision. Any consent by any Party to, or waiver of, a breach by the other Party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
6.04. Assignment. This Agreement will bind and inure to the benefit of each Party's permitted successors and assigns. Client may not assign this Agreement (by operation of law or otherwise) without the prior written consent of Braintree. For the avoidance of doubt, any direct or indirect change of control of Client shall be deemed an assignment by Client for the purposes of this Section 6.04. Braintree may assign this Agreement in its sole discretion without the written consent of Client.
6.05. Amendments. This Agreement may be amended by Braintree by posting a new version of this Agreement within the control panel or any place that Client has access to in order to view the revised Agreement, in which case Braintree shall provide written notice to Client (either via mail or electronically via a "click-through" process) and such notice shall set forth the acceptance process for the amendments to this agreement contained therein.
6.06. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), or first class mail, postage prepaid, sent to the addresses set forth herein.
Notice to Braintree: Braintree Payment Solutions, LLC 833 West Jackson Blvd Floor 500 Chicago, IL 60607 Telephone: 877.434.2894 Facsimile: 847.890.6644
Notice to Client: Notices to Client shall be sent to the address on file with Braintree as provided by Client.
6.07. Section Headings: The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.
6.08. Entire Agreement; Binding Effect. This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the Parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any Party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the Parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
6.09. Jurisdiction; Venue; Governing Law. The parties mutually acknowledge and agree that this Agreement shall be construed and enforced in accordance with the laws of the State of Illinois, without regard to the internal law of Illinois regarding conflict of laws. The parties mutually consent and submit to the jurisdiction of the federal and/or state courts of Illinois and any action or suit concerning this Agreement or related matters shall be brought by the parties in federal or state court with appropriate subject matter jurisdiction in Illinois. The parties mutually acknowledge and agree that they shall not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. The parties acknowledge that they have read and understand this clause and agree willingly to its terms.
6.10. Attorney's Fees. Should suit be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including, without limitation, expert witness fees and fees on any appeal
6.11. Survival. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 1.02, 1.03, 1.04, 1.05, 2.01, 3.01, 3.02, 4.02, 5.01, 5.02, 5.03, 5.04, 5.05, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 5.13, 6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10 and 6.11 shall survive termination of this Agreement.
Exhibit ABraintree Trademarks
The Braintree Trademarks are "BRAINTREE SECURE PAYMENTS" word & design mark and "(padlock logo) BY BRAINTREE" word & design mark, in each case, solely in one of the formats and color schemes displayed at http://www.braintreepayments.com/gateway/badge.
Braintree Payment Solutions, LLC's (the "Company" trademarks, service marks, logos, product names, trade names, and trade dress (collectively the "Braintree Trademarks" are among the Company's most important and valuable assets. The Braintree Trademarks help identify and distinguish the Company' products and services, and represent the reputation and goodwill of the Company. The Braintree Trademarks must be properly used in order to protect and preserve the Company's rights therein. Consequently, all licensees and permitted users, as well as Company employees, must abide by the following guidelines and rules of trademark use.
The words "Braintree"and "Braintree Secure Payments" and the word & design marks "BRAINTREE SECURE PAYMENTS" and "padlock logo) BY BRAINTREE", are trademarks of Braintree Payment Solutions, LLC. All rights reserved. This website is not controlled by Braintree Payment Solutions, LLC.
© 2007-2012 Braintree, Inc. All rights reserved. Braintree is a registered ISO/MSP of Wells Fargo Bank, N.A., Walnut Creek, CA
