Merchant User License Agreement

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 Novaux Inc. a Delaware Corporation (“Novaux.com”) and the entity designated by the registration data provided herewith (“Licensee”) and applies to Licensee’s use of software downloaded from Novaux.com and Licensee’s use of services provided by Novaux.com (“Novaux.com Services”). READ THIS LICENSE CAREFULLY BEFORE LOADING ANY SOFTWARE FROM NOVAUX.COM OR USING THE NOVAUX.COM SOFTWARE OR NOVAUX.COM SERVICES. BY LOADING THE NOVAUX.COM SOFTWARE OR USING THE NOVAUX.COM SERVIES, LICENSEE ACCEPTS AND AGREES TO BECOME BOUND BY THE TERMS OF THIS LICENSE. NOVAUX.COM RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT BY PROVIDING NOTICE OF CHANGES ON THE NOVAUX.COM WEBSITE. LICENSEE AGREES TO PERIODICALLY INSPECT THE NOVAUX.COM WEBSITE TO STAY INFORMED ABOUT SUCH CHANGES. LICENSEE AGREES THAT LICENSEE’S CONTINUED USE OF THE NOVAUX.COM SERVICE AFTER SUCH CHANGES ARE ANNOUNCED CONSTITUTES ACCEPTANCE OF SUCH CHANGES. Novaux.com shall retain the ownership of the provided copy of Novaux.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, Novaux.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 Novaux.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. There 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 Novaux.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 Novaux.com’s prior written approval, (e) resell, rent or otherwise provide access to the Novaux.com services to a third party or (f) take any action in an attempt to obtain any other Novaux.com user’s data, cause malfunction, crash, tamper with or otherwise impair the Novaux.com website and it services. Any rights not expressly granted hereunder are reserved by Novaux.com. No rights in the Licensed Software or Novaux.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 Novaux.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 Novaux.com Privacy Policy located here. Novaux.com agrees that as between Licensee and Novaux.com, Licensee’s data maintained by Licensee on the Novaux.com website belongs to Licensee. Licensee hereby grants permission to Novaux.com for Novaux.com to use the data solely for providing Licensee the Novaux.com account, improving and maintaining the Novaux.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 Novaux.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 Novaux.com’s systems, (ii) Licensee agrees that Novaux.com can delete such data in the event the Licensee exercises the Novaux.com opt-out mechanism and (iii) any use of such data by Licensee shall comply with Novaux.com’s privacy policy. Licensee shall indemnify and hold harmless Novaux.com and the Novaux.com Parties from any claim brought against Novaux.com alleging that personal information stored on Novaux.com was improperly used where such use was by Licensee while such information was stored on Novaux.com or any use after Licensee has exported such data. Limited Liability LICENSEE AGREES THAT THE NOVAUX.COM SOFTWARE AND NOVAUX.COM SERVICES ARE PROVIDED “AS IS.” WITHOUT ANY WARRANTY EXPRESS OR IMPLIED. ANY USE OF THE NOVAUX.COM SOFTWARE AND NOVAUX.COM SERVICES IS AT LICENSEE’S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL NOVAUX.COM OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS (“NOVAUX.COM PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE NOVAUX.COM SOFTWARE OR THE NOVAUX.COM SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, NOVAUX.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 NOVAUX.COM SOFTWARE OR NOVAUX.COM SERVICES, LOSS OF DATA, THE COSTS OF RECOVERING DATA, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS. NOVAUX.COM MAKES NO WARRANTY OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE NOVAUX.COM SOFTWARE OR NOVAUX.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 NOVAUX.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. Novaux.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 Novaux.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 Novaux.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 Novaux.com and the Novaux.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 Novaux.com shall terminate the Licensee’s access to their Novaux.com account, the account itself and the data residing therein. LICENSEE MUST EXPORT THEIR ACCOUNT DATA PRIOR TO TERMINATION OF THE NOVAUX.COM SERVICE. NOVAUX.COM SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION. In addition, Novaux.com reserves the right and Licensee acknowledges such right for Novaux.com to terminate service of Licensee’s account on 30 days notice if Novaux.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 Novaux.com Services and its processes are the confidential information of Novaux.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 Novaux.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 Novaux.Com services using the Ignite Payment Solutions, Licensee agrees to the following contractual provisions: Licensee hereby authorizes Novaux.com to bind Licensee to the end-user license agreement proferred by Ignite Payment Solutions, LLC for the purpose of establishing Licensee as a customer of Ignite Payment Solutions. 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 Novaux.com by Ignite Payment Solutions for Licensee’s use of the Ignite Payments 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 Novaux.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 Novaux.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 Novaux.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 Novaux.com and the Novaux.com Parties harmless from any claim brought against Novaux.com or any Novaux.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 Ignite PAYMENTS SYSTEM OR SERVICE IS AT LICENSEE’S SOLE AND ABSOLUTE RISK AND THAT NEITHER NOVAUX.COM, NOR ANY NOVAUX.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 NOVAUX.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 NOVAUX.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 NOVAUX.COM AND THE NOVAUX.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 Novaux.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.