TERMS OF SERVICE FOR HYPERVEND HARDWARE, SOFTWARE, SUBSCRIPTIONS AND DEVELOPMENT

ATTENTION! THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF ANY HARDWARE PROPOSAL, LICENSE, DEVELOPMENT OR SUBSCRIPTION SERVICES AND/OR USE OR SETUP OF THE SOFTWARE. THIS INCLUDES ANY CUSTOM DEVELOPMENT. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING ANY AGREEMENT OR USING THE HyperVend SOFTWARE.

Section Headings and Numbers.

Certain Sections may have been renamed and/or renumbered in this document for convenience only and such renaming and/or renumbering shall not affect the validity, construction or interpretation of the Agreement. References in the Proposal and/or Subscription Services Agreement to any Section names or numbers under this document shall be deemed to be a reference to the identified or corresponding provisions in this document to accomplish the reasonable intent and objectives of such provisions to the greatest extent possible under applicable law.

1. Definitions  

“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party, for so long as such control exists.

“Confidential Information” means, except as set forth in the following paragraph: (a) Customer Data; (b) the terms of a proposal and (c) any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this Agreement, that: (i) in the case of information in tangible form, is marked “confidential” or “proprietary;” (ii) in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten (10) days following disclosure; (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; and (iv) will include any reproduction of such information in any form or medium, or any part of such information.

Notwithstanding the foregoing, the following shall not be Confidential Information: (1) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party; (2) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a third party without restriction (4) information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information; and (5) aggregate data collected or generated by HyperVend or on behalf of HyperVend regarding HyperVend’s products and services (for purposes of providing or improving HyperVend products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that may contain any personally identifiable or Customer-specific information.

“Customer Data” means all electronic data or information submitted to and stored in the Service by Users. “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.

“Estimate/Order Form” means a HyperVend estimate, invoice, renewal notification or order form in the name of and executed by Customer or its Affiliate and accepted by HyperVend which specifies the Service, and any Support Services and/or Professional Services to be provided by HyperVend subject to the terms of this Agreement.

“Help Documentation” means the online English language help center documentation describing the Service features, including User Guides which may be updated from time to time.

“Professional Services” means the general consulting, implementation and/or training services to be provided to Customer pursuant to (i) the Professional Services, or such other URL as specified by HyperVend, and (ii) a Statement of Work (as defined in such professional services agreement).

“Service” means, collectively, the HyperVend Hardware and Software retail system and application suite (and any optionally procured modules) (the “HyperVend Service”).

“Support Services” means the supplemental, technical support services to be provided to Customer pursuant to the terms for Support Services, found at www.HyperVend.com, or such other URL as specified by HyperVend.

“Third Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than HyperVend, as further described in Section 2.4 (“Third Party Applications”) that interoperate with the Service, including but not limited to those listed on HyperVend.com.

“Users” means individuals who are authorized by Customer or its Affiliate to use the Service pursuant to this Agreement or as otherwise defined, restricted or limited in an Estimate/Order Form or amendment to this Agreement, for whom subscriptions to a Service have been procured. Users include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors and agents.

“User Guides” mean the online English language user guides for the Service, accessible via login at http://www.HyperVend.com (under “Help”), as updated from time to time. Customer acknowledges that it has had the opportunity to review the User Guides through a free trial account or demo made available by HyperVend.

“URL Terms” means the terms with which Customer must comply, which are located at a URL, referenced in this Agreement and are hereby incorporated by reference.

2. Terms of Service. Customer acknowledges and agrees to the following terms of service, which together with the terms of the Subscription Services Agreement entered into between Customer and HyperVend, shall govern Customer’s access and use of the Service (collectively, the “Agreement”). Capitalized terms not otherwise defined in these Terms of Service shall have the meaning given to them in the Agreement.

2.1. Accuracy of Customer’s Contact Information. Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.

2.2. Users: Passwords, Access, And Notification. Customer shall authorize access to and assign unique passwords and user names to the number of Users procured by Customer. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be permanently reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User’s passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, credit card data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. HyperVend will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify HyperVend of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers.

2.3. General Restrictions.

(a) General. Customer is responsible for all activities conducted under User logins and for Users’ compliance with this Agreement. Customer must not use, and must ensure that Affiliates do not use, the Service to provide a service bureau or outsourced service, and may not rent, resell, sublicense, or permit the concurrent use of a single User login, or time- sharing of the Service. Customer shall not and shall not permit any Affiliate, User or other third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form unless expressly allowed in the Help Documentation; (b) access or use the Service to circumvent or exceed Service account limitations or requirements; (c) use the Service for the purpose of building a similar or competitive product or service, (d) obtain unauthorized access to the Service (including without limitation permitting access to or use of the Service via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized Users); (e) use the Service in a manner that is in violation of any third party rights of privacy or intellectual property rights; (f) issue or participate in any press release or other public statement related to this Agreement or the Service without prior written consent of HyperVend; (g) publish, post, upload or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (h) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Service. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with this Agreement, including without limitation those related to privacy, electronic communications and anti-spam legislation.

Customer is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall not store credit card and social security data in the Service except in the designated encrypted fields for such data. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by HyperVend. Customer shall not do any “mirroring” or “framing” of any part of the Service, or create Internet links to the Service which include log- in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by HyperVend. Customer shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement. Any action or breach by any of such User shall be deemed an action or breach by Customer.

2.4. Third Party Applications.

HyperVend or third party providers may offer Third Party Applications. Except as expressly set forth in the Estimate/Order Form, HyperVend does not warrant any such Third Party Applications, regardless of whether or not such Third Party Applications are provided by a third party that is a member of a HyperVend partner program or otherwise designated by HyperVend as “Built For HyperVend,” “certified,” “approved” or “recommended.” Any procurement by Customer of such Third Party Applications or services is solely between Customer and the applicable third party provider. Customer may not use Third Party Applications to enter and/or submit transactions to be processed and/or stored in the Service, unless Customer has procured the applicable subscription to the Service for such use and access.

HyperVend is not responsible for any aspect of such Third Party Applications that Customer may procure or connect to through the Service, or any interoperation, descriptions, promises or other information related to the foregoing. If Customer installs or enables Third Party Applications for use with the Service, Customer agrees that HyperVend may enable such third party providers to access Customer Data for the interoperation of such Third Party Applications with the Service, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider pursuant to a separate privacy policy or other terms governing Customer’s access to or use of the Third Party Applications. HyperVend shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Applications or third party providers. No procurement of such Third Party Applications is required to use the Service. If Customer was referred to HyperVend by a member of one of HyperVend’s partner programs, Customer hereby authorizes HyperVend to provide such member or its successor entity with access to HyperVend’s business information related to the procurement and use of the Service pursuant to this Agreement, including but not limited to User names and email addresses, support cases and billing/payment information.

2.5. Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Service. Customer is responsible for securing DSL, cable or another high speed Internet connection and up-to-date “browser” software in order to utilize the Service. Customer expressly consents to HyperVend’s interception and storage of Electronic Communications and/or Customer Data as needed to provide the services hereunder, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by HyperVend. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. HyperVend is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by HyperVend, including, but not limited to, the Internet and Customer’s local network.

2.6. Service Level. During the Term, the Service will meet the service level specified as 99% server uptime per year, which is hereby incorporated by reference. If the Service fails to achieve the service level, then Customer will not be entitled, to any credit or refund for the Service.     

2.7. Support Services and Professional Services. As part of the Service, HyperVend will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Service. HyperVend also offers optional “for fee” Support Services and Professional Services.

2.8. Security. HyperVend may maintain administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data. During the Term, Customer shall maintain PCI DSS compliance for the portions of the Service that store and process credit card data. Any changes made to the Service by the Customer or at the Customer’s direction may affect the Customer’s compliance with PCI DSS requirements and Customer shall be solely responsible for ensuring that any such changes are compliant with PCI DSS requirements.

2.9. Confidentiality. Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a reasonable degree of care in the protection of such confidential information) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers who have executed agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section. Additionally, Customer must input credit card information and social security numbers only in the fields designated for such data in the Service. HyperVend may disclose Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.

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2.11. Ownership of Customer Data. As between HyperVend and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with the provision of the Service, HyperVend may store and maintain Customer Data for a period of time consistent with the HyperVend standard business processes. Following expiration, termination or payment default of the Customer Estimate/Order or a Customer account HyperVend may deactivate the applicable Customer account(s) and delete any data therein.

2.12. HyperVend Intellectual Property Rights. All rights, title and interest in and to the Service (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Service provided or developed by HyperVend) are owned exclusively by HyperVend or its licensors. Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Customer grants HyperVend a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Service. Any rights in the Service or HyperVend’s intellectual property not expressly granted herein by HyperVend are reserved by HyperVend. HyperVend, logos and product and service names are marks of HyperVend (the “HyperVend Marks”). Customer agrees not to display or use the HyperVend Marks in any manner without HyperVend’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers (“Marks”) are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.

2.13. Refunds.

All HyperVend units are “made to order” for your specific company and are non-refundable.  All payments made by Customer for set up fees, hardware, shipping, training, travel or custom modification are non-refundable. Any refund or credit will be at the sole discretion of HyperVend. The customer must provide written notice to request a credit within 10 days of payment to be eligible for a refund or credit. You agree that if you have any problems or questions regarding your service that you will contact HyperVend for assistance, and agree not to dispute any charges from HyperVend unless you have already attempted to rectify the situation with HyperVend directly. All license subscription fees are non-refundable. Chargebacks without prior authorization will be liable for a fee equal to 50% of the original charge plus court costs and attorney fees to recover any amounts due.

3. Order Cancellations

Any order cancelled after we have begun ordering parts or begun assembly is non-refundable. If you choose to decline delivery after we have started fabrication, we will make every attempt to find a new buyer for your HyperVend order/unit and place it with a new buyer. This process may take up to 90 days if possible. 

Please note, we do not control shipping schedules once a unit leaves our factory. Ocean and air cargo delivery timelines may vary around the world. Supply chain issues may impact expected delivery times as some parts may not be available or have to be installed on-site in certain cases. We will make every effort to meet the estimated ship time. 

4. Warranties

4.1. Warranty of Functionality. HyperVend warrants that: (i) the hardware will achieve in all material respects the basic functionality as defined by HyperVend. Customer’s sole and exclusive remedy for HyperVend’s breach of this warranty shall be that HyperVend shall be required to use reasonable efforts to modify the Service to achieve in all material respects the functionality and if HyperVend is unable to restore such functionality, Customer shall not be entitled to terminate the Agreement. HyperVend shall have no obligation with respect to a warranty claim unless notified of such claim within thirty (30) days of the first instance of any material functionality problem, and such notice must be sent to support@HyperVend.com. Such warranties shall only apply if the applicable Service has been utilized in accordance with the User Guides, this Agreement and applicable law.

4.2. Warranty of No Malicious Code. Customer warrants that it will not introduce viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”) into the Service.

5. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3.1 AND 3.2 ABOVE, HyperVend DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE HARDWARE OR SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY HyperVend. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 2.6, 3.1, and 3.2 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. HyperVend EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

6. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.

THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED ONE MONTH SERVICES.

BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN THE SECOND PARAGRAPH OF THIS SECTION SHALL NOT APPLY TO: (A) FEES DUE UNDER THIS AGREEMENT; (B) A BREACH OF SECTION 2.3 OF THESE TERMS OF SERVICE; OR (C) EITHER PARTY’S DEFENSE AND INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 6 BELOW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 10, CUSTOMER SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.

7. Indemnification.

7.1. Infringement. Subject to the terms and conditions set forth in this Section 6, Customer shall, at its own expense, defend HyperVend from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes such third party’s copyrights or trademarks, or misappropriates such third party’s trade secrets and shall indemnify HyperVend from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim.

HyperVend will have no liability for Claims or Losses to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after HyperVend notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Service not made by HyperVend or made by HyperVend based on Customer specifications or requirements, (d) use of the Service in combination with any non-HyperVend software, application or service, or (e) services offered by Customer or revenue earned by Customer for such services.

The rights and remedies granted Customer under this Section 6.1 state HyperVend’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.

7.2. Customer’s Indemnity. Subject to the terms and conditions set forth in this Section 6, Customer shall, at its own expense, defend HyperVend from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks, or any use thereof, infringes the copyright or trademark or misappropriates the trade secrets of a third party, or violates applicable law ;and shall indemnify HyperVend from and against liability for any Losses to the extent based upon such Claims.

7.3. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 6, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 6 are expressly conditioned upon the indemnified party’s compliance with this Section 6.3 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 6 but such obligations shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for three years.

8. Suspension/Termination.

8.1. Suspension for Delinquent Account. HyperVend reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Service and/or Support Services if any payment is due but unpaid but only after HyperVend has provided Customer one (1) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice. Customer agrees that HyperVend shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension pursuant to this Section.

8.2. Suspension for Ongoing Harm. HyperVend may with reasonably contemporaneous telephonic notice to Customer suspend access to the Service if HyperVend reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s Service is causing immediate, material and ongoing harm to HyperVend or others. In the event HyperVend suspends access to the Service, HyperVend will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with Customer to resolve the issues causing the suspension of Service. Customer agrees that HyperVend shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section. Any suspension under this section shall not excuse Customer from Customer’s obligation to make payments under this Agreement.

8.3. Termination for Cause, Expiration. HyperVend may immediately terminate this Agreement and all Estimates/Order Forms issued hereunder in the event the Customer commits a material breach of any provision of this Agreement which is not cured within ten (10) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be as set forth in Section 

8.4. Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason, then HyperVend shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of HyperVend’s breach of this Agreement, then Customer shall not be entitled to a refund of any subscription fees, set up fees, training fees or customization fees paid by Customer to HyperVend under this Agreement.     

8.5. Notice. Any legal notice required under this Agreement shall be provided to the other party in writing. If Customer, to the address on file. If Customer has a legal dispute with HyperVend or if Customer wishes to provide a notice under the Indemnification Section of this Agreement, or if Customer becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to: HyperVend, 12 Channel Street, Suite 202, Boston, MA 02210,  Attention: General Counsel, Legal Department.

9. Modifications; Discontinuation of Service.

9.1 To the Service. HyperVend may make modifications to the Service or particular components of the Service from time to time and will use reasonable efforts to notify Customer of any material modifications. HyperVend reserves the right to discontinue offering the Service with 30 days notice and Customer shall have the right to terminate agreement if service is discontinued. HyperVend shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section.

9.2 To Applicable Terms. If HyperVend makes a material change to any applicable URL Terms, then HyperVend may, at its option, notify Customer by either sending an email to the notification email address or posting a notice to the Customer’s account on the login page. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify HyperVend via support@HyperVend.com within 30 days after receiving notice of the change. If Customer notifies HyperVend as required, then Customer will remain governed by the URL Terms in effect immediately prior to the change until the end of the then current subscription term for the affected service(s). If the affected service(s) is renewed, it will be renewed under HyperVend’s then current URL Terms.

9.3 GOVERNING LAW.  Massachusetts state law governs this Agreement without regard to its conflicts of laws provisions.

9.4 Non-Disparagement.  During the agreement Customer or Customer will take no action which is intended, or would reasonably be expected, to materially harm the Company, any affiliate of the Company, their respective businesses, officers, directors, or employees, harm the reputation of any of the foregoing Persons or entities, or which would reasonably be expected to lead to unwanted or unfavorable publicity to any of the foregoing Persons or entities.

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9.6 BINDING ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY.  IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION.  THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE IN DISCOVERY; AND (4) APPEAL RIGHTS WILL BE LIMITED.

ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply Massachusetts law to all other matters. Notwithstanding anything to the contrary, HyperVend may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND HyperVend ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.

To begin an arbitration proceeding, send a letter requesting arbitration and describing your claim to HyperVend, Inc., in care of our registered agent. Arbitration will be conducted by the American Arbitration Association (AAA) before a single AAA arbitrator under the AAA’s rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees and costs will be governed by the AAA’s rules. Likewise, HyperVend may seek its attorney’s fees or costs in arbitration. HyperVend may choose to have the arbitration conducted by telephone, based on written submissions,  or at another mutually agreed location. The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. This Section 14 shall survive expiration, termination or rescission of this Agreement.

9.7. GENERAL

This Agreement,  is the entire agreement between you and HyperVend and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You cannot assign or transfer ownership of this Agreement to anyone without written approval of HyperVend. However, HyperVend may assign or transfer it without your consent to (a) an affiliate, (b) a company through a sale of assets by HyperVend or (c) a successor by merger. Any assignment in violation of this Section shall be void. If you want to request a transfer of this Agreement, contact HyperVend via registered mail.