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was already known to the receiving Party prior to its disclosure; (iii) is lawfully obtained
<br />from a third party without obligations of confidentiality; or (iv) is independently developed by
<br />the receiving Party without reference to any Confidential Information of the disclosing
<br />Party.
<br />(b) Disclosure and Use Restrictions. Neither Party will disclose, reproduce, transfer or use
<br />the other Party's Confidential Information; provided, however, that either Party may
<br />disclose Confidential Information to the extent it must be communicated in response to a
<br />valid law, regulation or court order, provided the receiving Party uses reasonable efforts to
<br />notify the disclosing Party prior to disclosure (unless such notification is prohibited by law,
<br />regulation or court order) so the disclosing Party may seek a protective order, at its sole
<br />cost and expense, or otherwise prevent or limit such disclosure.
<br />4. Fees. Agent will pay RAPID Financial Solutions for all expenditures, fees, additional service fees
<br />and special fees, costs and charges (collectively, "Fees"), as described in any Schedule, addenda,
<br />exhibit, or other written document agreed by the Parties for the Services provided by RAPID
<br />Financial Solutions, together, with any and all charges on Agent's account for goods or services
<br />purchased by Agent or anyone authorized to use Agent's account as more particularly detailed in
<br />the applicable addenda. RAPID Financial Solutions reserves the right to modify the Fees applicable
<br />to the Services from time to time with at least thirty (30) days' notice to Agent. RAPID Financial
<br />Solutions will notify Agent electronically of any change it makes to its Fees in accordance with
<br />these General Terms.
<br />5. Disclaimer of Warranties and Limitation of Liability.
<br />(a) Disclaimer. PROCESSOR SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY
<br />KIND, EXPRESS OR IMPLIED ARISING OUT OF OR RELATED TO THIS AGREEMENT,
<br />INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
<br />EXCLUDED BY AGREEMENT OF THE PARTIES. PROCESSOR AND AGENT HEREBY
<br />AGREE THAT PROCESSOR'S OBLIGATIONS TO AGENT AGREEMENT ARE RELATED
<br />TO PROCESSOR PROVIDING SERVICES. THAT THIS AGREEMENT IS A SERVICE
<br />AGREEMENT FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE AND
<br />THEREFORE THE PROVISIONS OF THE UNIFORM COMMERICAL CODE SHALL NOT
<br />APPLY TO THIS AGREEMENT.
<br />(b) Limitation of Liability. Except in the case of willful misconduct or gross negligence,
<br />Processor's cumulative liability for any loss or damage, direct or indirect, for any cause
<br />whatsoever (including, but not limited to those arising out of or relating to this Agreement)
<br />with respect to claims relating to events in any one Processing Year shall not under any
<br />circumstances exceed the amount of the Processing Fees (Exhibit A) paid to Processor
<br />pursuant to this Agreement for Services performed in the immediately preceding two (2)
<br />month period. EXCEPT IN THE CASE OF INTELLECTUAL PROPERTY INFRINGEMENT
<br />DAMAGES SUFFERED BY THE OTHER PARTY, IN NO EVENT SHALL PROCESSOR BE
<br />LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER
<br />LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, EXEMPLARY, PUNITIVE,
<br />SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH
<br />IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF
<br />WHETHER OR NOT PROCESSOR OR AGENT HAS BEEN ADVISED OF THE
<br />POSSIBILITY OF SUCH DAMAGES.
<br />6. Indemnification. Agent covenants and agrees to protect, defend, indemnify and hold harmless
<br />Processor and all of Processor's related companies, along with their respective officers, directors,
<br />employees, agents, permitted assigns, and all parties supporting or assisting Processor in the
<br />provision of the Processing Services (collectively, including Processor, the "Processor Parties"), for,
<br />from and against any and all claims, losses, damages, costs, charges, liens, fines, penalties, suits,
<br />orders, judgments or expenses, including any legal fees and legal costs, arising out of this
<br />Agreement and Agent's use of the Processing Services, including but in no way limited to those
<br />arising from any legal action, claim, demand or proceedings brought against any of them.
<br />Master Service Agreement
<br />Page 5 of 10
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