Terms and Conditions
BANANA MARKETPLACE LLC Terms and Conditions
Effective Date: 10/10/2023
These Terms and Conditions (“Agreement”) are entered into by and between BANANA MARKETPLACE LLC a NY, USA corporation with its principal place of business at 116 West 23rd St, New York, NY, 10011 (“Company” or “we” or “us”), and you, the user (“User” or “you”). This Agreement governs your access to and use of The Banana Marketplace Platform, including any associated software, services, and documentation (collectively, the “Service”).
Please read this Agreement carefully before accessing or using the Service. By accessing or using the Service, you agree to be bound by the terms and conditions set forth in this Agreement. If you do not agree to these terms and conditions, you may not access or use the Service.
1. DEFINITIONS.
As used in this Agreement, the following definitions shall apply, unless the context otherwise requires:
1.1. “Affiliate” means, with respect to any Person, any other Person now or hereafter directly or indirectly controlling, controlled by or under common control with such Person, but only for so long as such control exists. For the purpose of this definition, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
1.2. “Applicable Laws” means applicable national, federal, state and local laws, rules, regulations, orders and directives of any governmental (including, without limitation, any regulatory or quasi-regulatory) agency and contracts, including, without limitation, financial, disclosure, import, export, encryption, securities, privacy and data protection laws.
1.3. “Application Form” means any written materials containing Merchant Data, which information is collected by ISO and uploaded and shared on the Licensor Platform.
1.4. “Intellectual Property Rights” means any and all intellectual property rights worldwide, including but not limited to all: (a) patent rights, including but not limited to rights in formulae, designs, proprietary processes, inventions and improvements thereto; (b) trademark rights including but not limited to rights in trademarks, service marks, trade names, trade dress, logos, indicia of origin, and any goodwill related to the foregoing; (c) copyright and database rights including but not limited to rights in works of authorship (whether or not copyrightable), software (including, without limitation, source code, object code, firmware and executables) and mask works; (d) proprietary rights in trade secrets, know-how, industrial models, confidential and technical information, technical drawings, product specifications and confidential business information; (e) intellectual property rights similar to any of the foregoing; (f) all rights to sue for past present and future infringements, misappropriation or violation of any of the foregoing to the fullest extent permitted by law, and (g) copies and tangible embodiments thereof (in whatever form or medium, including electronic media).
1.5. “Licensor Data” means any Licensor’s information relating to Merchant that is part of the Licensor Platform, including the Merchant Data.
1.6. “MCAs” means third-party merchant cash advance funding Persons who use the Licensor Platform (pursuant to a written agreement with Licensor) to identify Merchant Receivables on the Licensor Platform for the purposes of purchasing the Merchant Receivables.
1.7. “Merchant” means each Person providing Merchant Data on an Application Form to ISO and authorized ISO to offer its Merchant Receivables to be sold to MCAs on the Licensor Platform.
1.8. “Merchant Data” means all information, data materials and related documentation Merchant provides to ISO, whether as part of the Application Form or separately provided, to be submitted by ISO in the course of ISO’s use of the Licensor Platform.
1.9. “Merchant Receivables” means present and hereafter arising accounts, receipts, contract rights, payment intangibles, general intangibles and other obligations arising from or relating to the payment in the future of monies, whether by cash, check, credit or debit card, electronic or any other form of payment each of which arises from the sale of goods or delivery of services by Merchant, which are being offered for sale by ISO on behalf of one or more Merchants through the Licensor Platform.
1.10. “Person” shall mean an individual, corporation, partnership, limited liability company, association, trust or other entity or organization.
1.11. “Licensor Platform” means Software as a Service that allows ISOs to upload Licensor Data and supporting documentation on behalf of a Merchant and for processing any MCAs who seek to purchase Merchant Receivables on the basis of the Merchant Data. The Licensor Platform facilitates the sale of Merchant’s Receivables by suggesting MCAs who may be interested in providing funding and tracking whether an MCA has accepted or rejected a Merchant, thereby providing the ability to track deal lifecycle between Merchants and MCAs, including management of Licensor Data exchanged in connection therewith.
2. LICENSE.
2.1 Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to ISO a personal, non- exclusive, non-transferable, non-sublicensable, limited, revocable license solely during the Term and in accordance with any additional restrictions, including territorial restrictions, to use the Licensor Platform solely for the Permitted Use in the Territory (as defined in this Section 2).
2.2 ISO Permitted Use. ISO may use the Licensor Platform solely for the following purposes:
2.2.1 Uploading and updating Merchant Data and any additional information and/or documentation provided by a Merchant to Licensor Platform, including without limitation, bank statements, lease, driver’s license and other financial information;
2.2.2 Adding new Merchants, modifying, viewing and printing any Merchant Data including the generation of reports, all limited to the purpose of facilitating the funding of Merchant Receivables by MCAs who are authorized to use the Licensor Platform;
2.2.3 Referrals;
2.2.4 Generating leads for MCAs;
2.2.5 Communicating with MCAs on behalf of a Merchant;
2.2.6 Receive a hyperlink to a personalized consent page for Merchant and provide such hyperlink to Merchant;
2.2.7 Instruct the Licensor Platform to find MCA funding sources;
2.2.8 Receive communication from MCA with respect to funding the Merchant Receivables;
2.2.9 Communicate directly with MCAs; and
2.2.10 Any other Permitted Use as may be communicated by Licensor to ISO.
2.3 Restrictions, Covenants and Conditions. The license granted under this Agreement is expressly conditioned on ISO’s compliance with each of the following conditions:
2.3.1 ISO’s use of the Licensor Platform shall be strictly in accordance with the terms and conditions of this Agreement and Applicable Laws.
2.3.2 Only ISO may access and use the Licensor Platform, and solely for the Permitted Use and ISO shall not provide or allow any Person, including without limitation, any Merchant access to the Licensor Platform.
2.3.3 ISO may only use the Licensor Data obtained through the Licensor Platform for the purpose of facilitating acquisitions of Merchant Receivables by MCAs who are authorized to use the Licensor Platform.
2.3.4 ISO has procured an Application Form from Merchant pursuant to which ISO has received all necessary authorizations and approvals from each Merchant to (i) disclose and use, on each Merchant’s behalf, all Merchant Data on the Licensor Platform, (ii) to permit Licensor to use such Merchant Data in accordance with permitted uses set forth on a given Application Form and (iii) to permit Licensor and/or ISO to share such Merchant Data with MCAs in connection with facilitating the funding of Merchant Receivables by MCAs who are authorized to use the Licensor Platform.
2.3.5 ISO shall be responsible for ensuring that all Merchant Data that ISO inputs into the Licensor Platform is true, accurate, current and complete in all respects and that no false, inaccurate or misleading statements or material misrepresentations are included in the Merchant Data uploaded to the Licensor Platform nor does it omit any materials information necessary to make such Merchant Data not true, accurate, current and complete in all respects.
2.3.6 All copies of the Licensor Data must retain Licensor’s copyright and trademark notices, which shall not be deleted or otherwise removed by ISO, and ISO shall keep records of the number and location of all such copies and make such records available to Licensor upon request;
2.3.7 ISO shall not upload any Merchant Data or other information to the Licensor Platform that would result, or is reasonably likely to result in, violation of any Applicable Laws;
2.3.8 ISO shall maintain the confidentiality of its log-in credentials for the Licensor Platform and shall not permit any Merchant or other Person to log into the Licensor Platform using ISO’s credentials and ISO shall not trick, defraud, or mislead Licensor and other users, especially in any attempt to learn sensitive account information;
2.3.9 ISO shall not systematically retrieve data or other Licensor Data from the Licensor Platform to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission;
2.3.10 ISO shall not circumvent, disable, or otherwise interfere with security-related features of the Licensor Platform, including features that prevent or restrict the use or copying of any Licensor Data or enforce limitations on the use of the Licensor Platform and/or the Licensor Data contained therein;
2.3.11 ISO shall not engage or assist in the unauthorized framing of or linking to the Licensor Platform;
2.3.12 Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Licensor Platform or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Licensor Platform;
2.3.13 Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms”)
2.3.14 ISO shall not copy or adapt the Licensor Platform, including but not limited to Flash, PHP, HTML, JavaScript, or other code, or, except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Licensor Platform;
2.3.15 ISO shall not take any action that is designed to prevent Licensor from earning the License Fees, including without limitation, facilitating any acquisition of Merchant Receivables by MCA without informing Licensor; and
2.3.16 For purposes of this Agreement, the “Territory” shall mean the United States of America, and the Licensed Platform shall only be used by ISO in the United States, and only in connection with potential transactions executed solely in the United States.
2.4 Proprietary Rights. ISO acknowledges that Licensor owns proprietary rights in the Licensor Platform and Licensor Data and in any Licensor information that pertains to MCAs, and ISO shall protect and defend the proprietary nature of the Licensor Platform, the Licensor Data and any Licensor information that pertains to MCAs. As between ISO on the one side and Licensor on the other side, Licensor retains all right, title and interest in and to the Licensor Platform, the Licensor Data and in any Licensor information that pertains to MCAs (including all Intellectual Property Rights), subject only to the licenses expressly granted under this Agreement. ISO acknowledges and agrees that no configuration or deployment of the Licensor Platform shall affect or diminish Licensor’s rights, title, and interest in and to the Licensor Platform.
All Intellectual Property Rights in and to the Licensor Platform and Licensor Data are the exclusive property of Licensor, or of third parties from whom Licensor has obtained rights to use certain portions contained therein. Licensor and such third parties shall retain all right and title, to the extent of their respective interests, to all proprietary rights in the Licensor Platform and Licensor Data. ISO therefore agrees that (i) it shall not remove or modify any proprietary markings or restrictive legends placed in or generated by Licensor or the Licensor Platform; (ii) it shall treat and keep the Licensor Data in strict confidence; (iii) it shall not use, copy, create derivative works of the Licensor Platform or Licensor Data, or disclose the same, nor permit any of its personnel or agents to do so, except as specifically authorized by this Agreement; and (iv) it shall use reasonable care to safeguard the confidentiality of the Licensor Platform and Licensor Data. Except for the limited rights of use as expressly granted herein, the ownership and all right, title and interest in and to the Licensor Platform and Licensor Data reside in and with Licensor.
If ISO suggests any new features, functionality or performance for the Licensor Platform, Licensor shall own all right, title and interest (including any Intellectual Property Rights) in such suggested features, functionality and/or performance unless the parties agree otherwise in writing, and Licensor shall have an absolute, perpetual and unrestricted right to incorporate all such suggested features, functionality and performances into the Licensor Platform and to use and license the same. ISO shall not disassemble, decompile, reverse engineer, modify, transcribe, store, translate, sell, lease, or otherwise transfer or distribute any of the Licensor Platform, the Licensor Data or any Licensor information that pertains to MCAs, in whole or in part, without prior authorization in writing from Licensor. In the event of any breach of this Section 2.4, the parties agree that injured party would suffer irreparable harm and shall therefore be entitled to obtain injunctive relief against the other party.
2.5 Contribution License. Beyond the provision of Merchant Data to the Licensor Platform, ISO may provide additional contribution or engage in communications through the Licensed Platform (“Contributions”). By posting its Contributions to any part of the Licensor Platform, ISO automatically grants, and ISO represents and warrants that it has the right to grant, to Licensor an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute such Contributions (including, without limitation, its image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels. This license will apply to any form, media, or technology now known or hereafter developed, and includes use of ISO name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images ISO provides. ISO waives all moral rights in its Contributions, and warrants that moral rights have not otherwise been asserted in its Contributions. Licensor does not assert any ownership over Contributions. ISO retain full ownership of all of Contributions and any intellectual property rights or other proprietary rights associated with Contributions. Licensor is not liable for any statements or representations in any Contributions. ISO is solely responsible for Contributions to the Licensor Platform and expressly agrees to exonerate and indemnify Licensor from any and all responsibility and to refrain from any legal action against Licensor regarding Contributions. Licensor has the right, in its sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorize any Contributions to place them in more appropriate locations on the Licensor Platform; and (3) to pre-screen or delete any Contributions at any time and for any reason, without notice. Licensor has no obligation to monitor any Contributions.
2.6 Third Party Beneficiaries. Notwithstanding the above, or anything set forth elsewhere in this Agreement, no third parties shall be deemed third party beneficiaries under this Agreement.
2.7 Mobile Application License. If ISO access the Licensor Platform via a mobile application, then Licensor hereby grants ISO a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by ISO, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in this Agreement. ISO shall not: (1) except as permitted by applicable law, decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the mobile application; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the mobile application; (3) violate any applicable laws, rules, or regulations in connection with its access or use of the mobile application; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by Licensor or the licensors of the application; (5) use the mobile application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the mobile application available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the mobile application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the mobile application; (8) use the mobile application to send automated queries to any website or to send any unsolicited commercial e-mail; or (9) use any proprietary information or any Licensor interfaces or other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the mobile application.
3. LICENSOR PLATFORM AND SUPPORT.
3.1 Licensor has no obligation to monitor MCAs’ or ISO’s actions on the Licensor Platform; provided, however, ISO acknowledges and agrees that Licensor has the right to monitor the Licensor Platform electronically from time to time and to disclose any information as necessary to satisfy any Applicable Law or other governmental request, to operate the Licensor Platform, present marketing or promotion offers on the Licensor Platform or on a third party website, or to protect itself or other users of the Licensor Platform. Licensor reserves the right, in our sole discretion, to take appropriate legal action against ISO of any violation of the law or this Agreement, including without limitation, reporting such user to law enforcement authorities.
3.2 Licensor reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, any feature on the Licensor Platform, including any add-on features, with or without notice, by electronic means (e.g., via email or by making the information available through the Licensor Platform). Licensor reserves the right to change the Licensor Platform, including fees as may be applicable, in its sole discretion and from time to time. If ISO does not agree to the changes after receiving a notice of the change to the Licensor Platform, ISO may stop using the Licensor Platform. ISO’s use of the Licensor Platform after it is notified of any changes will constitute ISO’s agreement to such changes. ISO agrees that Licensor will not be liable to it or any third party for any modification, suspension or discontinuance of the Licensor Platform.
3.3 THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. ISO AGREES THAT ITS USE OF THE SERVICES WILL BE AT ISO’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, ISO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE LICENSOR PLATFORM AND USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE COMPLETENESS OF THE LICENSOR PLATFORM, OR THE CONTENT OF ANY INFORMATION LINKED TO BY THE LICENSOR PLATFORM AND LICENSOR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM ITS ACCESS TO AND USE OF THE LICENSOR PLATFORM, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE LICENSOR PLATFORM, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE LICENSOR PLATFORM. LICENSOR DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND LICENSOR WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN ISO AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, INCLUDING ANY MERCHANT RELATIONSHIPS WITH ONE ORM MORE MCAS.
3.4 IN NO EVENT WILL LICENSOR, OR ITS MANAGERS, DIRECTORS, AFFILIATES, EMPLOYEES, OR AGENTS BE LIABLE TO ANY ISO, MERCHANT, MCA, OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM ITS USE OF THE LICENSOR PLATFORM, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, LICENSOR’S LIABILITY TO ISO FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY MCA OR ISO TO LICENSOR DURING THE THREE (3) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO ISO, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO ISO, AND ISO MAY HAVE ADDITIONAL RIGHTS.
4. FEES AND PAYMENTS.
4.1 License Fees. In connection with use of the Licensor Platform, ISO acknowledges and agrees that Licensor is entitled to receive a fee from MCAs with respect to any acquisition of Merchant Receivables of: (a) any Merchant whose Merchant Data was uploaded by ISO to the Licensor Platform equal to 2% percent of the purchase price paid by MCA for the purchase of any such Merchant Receivable; and (b) any Merchant whose contact information and/or Merchant Data uploaded by Licensor to the Licensor Platform and/or provided by Licensor to ISO and subsequently uploaded or updated by ISO equal to 4% percent of the purchase price paid by MCA for the purchase of any such Merchant Receivable (“License Fees”). ISO hereby agrees that the applicable MCA may deduct the License Fees otherwise payable as a commission to ISO and pay such License Fees directly to Licensor.
5. REPRESENTATIONS AND WARRANTIES.
5.1.1 ISO hereby represents and warrants as follows, which representations and warranties shall be true and correct in all respects during the Term:
5.1.2 By Accessing and Using this service, you represent that you have all requisite power and authority to execute and deliver this Agreement and perform its obligations hereunder. The execution, delivery and performance of this Agreement has been duly authorized by all requisite action on the part of the ISO and no other action or proceeding on the part of the ISO is necessary to authorize the execution, delivery and performance of this Agreement. This Agreement constitutes the legal, valid and binding obligations of the ISO enforceable against it in accordance with its terms.
5.1.3 ISO has complied, and is currently in compliance, with all Applicable Laws, particularly with respect to the collection and provision of the Merchant Data, maintains plans, controls, policies and procedures to ensure continued compliance with Applicable Law, and shall conduct its business in compliance with all such policies and procedures;
5.1.4 ISO has been granted all necessary authorizations and approvals from each Merchant to take any and all actions necessary to provide the Merchant Data on the Licensor Platform;
5.1.5 ISO has an executed Application Form with Merchant, including Merchant consent to use and share the Merchant data with affiliate and non-affiliates for any lawful purpose, and such information shall not have been obtained by ISO or any of its representatives by committing any misrepresentation (or by omission) of any material fact;
5.1.6 The computer systems, servers, network equipment and other hardware to be used to access the Licensor Platform (collectively, the “IT Systems”) maintain appropriate security and integrity features designed to prevent unauthorized access to or use of any IT Systems, ISO has not experienced any unauthorized access or security breaches or any unauthorized access to the IT Systems, and the IT Systems are periodically scanned to detect and eliminate viruses and other malware;
5.1.7 ISO will maintain an Internet connection with sufficient bandwidth to support communication connections between ISO and the Licensor Platform.
5.2 Misuse of Passwords. ISO shall maintain the confidentiality of its passwords for access to the Licensor Platform, regularly change such passwords, take all commercially reasonable efforts to prevent unauthorized misuse or misappropriation and, in the event of such, be responsible therefor and promptly notify Licensor thereof.
6. ACKNOWLEDGEMENTS BY ISO.
6.1 ISO hereby consents to the receipt of telephone calls, text messages, emails, or direct postal mail from Licensor or any MCA and such consent shall remain valid and in effect until ISO revokes it in writing, which may extend beyond the Term;
6.2 Licensor is not and shall not be responsible or held liable for the actions of any MCA that may contact ISO’s Merchants or review Merchant Data on the Licensor Platform;
6.3 ISO’s ability to use the Licensor Platform may be revoked at any time in Licensor’s sole discretion; and
6.4 Licensor shall not be responsible or held liable for any dispute between ISO, any Merchant and/or any MCA.
7. SECURITY.
7.1 Licensor maintains a comprehensive written information security program that sets forth administrative, technical, and physical safeguards that are appropriate to the size and complexity of Licensor, the nature and scope of activities performed by the Licensor Platform, and the sensitivity of the Merchant Data. The safeguards that the Licensor Platform implements are reasonably designed to ensure the security and confidentiality of customer information; protect against any anticipated threats or hazards to the security or integrity of such information; and protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any Merchant.
7.2 Licensor has set nominated one or more employees to coordinate its information security program, which identifies foreseeable internal and external risks to the security, confidentiality, and integrity of Merchant Data that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks.
7.3 With regard to the Licensor Platform and those locations where any Licensor Data is stored under the control of Licensor, Licensor will use commercially reasonable efforts to maintain and enforce safety, as well as physical and digital security procedures that are at least equal to industry standards for such types of service locations that take into account the risk assessment performed by Licensor. Licensor will use commercially reasonable efforts to secure the Licensor Platform against breach of security measures it deploys and will rectify any such breaches that occur, as well as regularly test or otherwise monitor the effectiveness of the safeguards in place for key controls, systems, and procedures.
7.4 Notwithstanding anything set forth in the Agreement and in addition thereto, in the event Licensor believes that its continued association with ISO might, in Licensor’s sole judgement, cause reputational harm to Licensor or its Affiliates, including that: (i) ISO’s use of the Licensor Platform would disrupt or pose a security risk to Licensor or to any other customer or vendor of Licensor, including other ISOs and MCAs; (ii) ISO has failed to carry out any of its obligations under this Agreement; or (iii) ISO is using the Licensor Platform for fraudulent or illegal activities, Licensor, at any time with or without notice, may monitor, modify any aspect of, limit, suspend or terminate ISO’s use of or access to any or all of the Licensor Platform or, any system, software, content or data accessible through or using the Licensor Platform.
8. MERCHANT DATA.
8.1 ISO shall have the ability to modify or update Merchant Data on Merchant’s behalf solely upon written authorization from each such Merchant, a copy of which shall be provided to Licensor prior to such modification and/or update.
8.2 ISO acknowledges and agrees that Merchant may directly request that Licensor remove Merchant Data from the Licensor Platform upon written request to Licensor, as well as otherwise revoke consent or opt-out to certain sharing of Merchant Data. ISO shall have no recourse against Licensor in the event that Merchant requests Licensor remove all such Merchant Data from the Licensor Platform that results in any lost fees by ISO from MCAs on the Licensor Platform.
8.3 While Licensor maintains responsibility for the security of the Merchant Data stored in the Licensor’s Platform, Licensor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Merchant Data. Licensor reserves the right to discard Merchant Data in the ordinary course without notice, including the removal or destruction of Merchant Data no longer in active use. Licensor expressly disclaims all other obligations with respect to storage.
9. INDEMNIFICATION; INJUNCTION.
9.1 ISO shall defend, indemnify and hold harmless Licensor and its officers, directors, employees, subsidiaries and Affiliates, from and against all claims, suits, proceedings, losses, liabilities and expenses (including reasonable attorney’s fees), whether in tort, contract, or otherwise, that arise out of or relate, in whole or in part arising out of or attributable to any breach of this Agreement, any activity by ISO in relation to the Merchant Data, any third- party claim that the Merchant Data infringes or misappropriates any third-party Intellectual Property Rights or any Applicable Law.
9.2 ISO shall notify Licensor promptly in writing of receipt of written assertion of a claim, and shall include a copy of all relevant documents or correspondence received in connection therewith; and Licensor shall have sole control of the defense and all related settlement negotiations, provided that Licensor shall not obligate ISO to pay any monies owed pursuant thereto without having obtained ISO’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed. ISO shall provide Licensor with all assistance, information, and authority necessary to undertake the defense of any such claim. Licensor shall have no liability for any claim of infringement resulting from: (i) ISO’s alteration or modifications of any of the Licensor Platform or Licensor Data without Licensor’s prior written approval of such alterations or modifications; (ii) ISO’s use of the Licensor Platform other than as permitted in this Agreement or as set forth in the Licensor Data or (iii) by use of the Licensor Platform with software, data, or material not authorized or approved of by Licensor.
9.3 Mitigation/Termination. In the event that some or all of the Licensor Platform or Licensor Data (which as used in this Section 9.3 is exclusive of any Merchant Data provided by ISO) are held or are reasonably believed by Licensor to infringe the rights of a third party, Licensor shall have the option, at its expense, to (a) modify the Licensor Platform or Licensor Data to make them non-infringing; or (b) obtain a license that permits ISO to continue using the Licensor Platform or Licensor Data. If neither of such options can be exercised by Licensor on a commercially reasonable basis within a thirty (30) day period from the time that the Licensor Platform or Licensor Data is held or is reasonably believed by Licensor to infringe the rights of a third party and the infringing materials materially affect the Licensor Platform or Licensor Data or the ability of Licensor to meet its obligations under this Agreement, then Licensor may terminate this Agreement upon written notice.
9.4 Injunctive Relief. ISO acknowledges that violation of the provisions of this Agreement may cause Licensor and/or its Affiliates irreparable injury not fully compensable by money damages and for which Licensor and/or its Affiliates will not have an adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive relief, specific performance or other equitable relief as may be necessary to enjoin, prevent or curtail any breach thereof, threatened or actual, without the posting of any bond. The foregoing shall be in addition to and not in lieu of and without prejudice to or limitation on any other rights or remedies Licensor may have under this Agreement, at law or in equity, including the right to seek preliminary injunctive relief for violations of provisions of this Agreement other than those listed above.
10. TERM; TERMINATION.
10.1 Term. This Agreement is effective from the date when the user signs up for the platform and will remain in effect unless terminated earlier as provided below.
10.2 Termination. Either party may terminate this Agreement and all licenses granted hereunder: (i) if the other party is in material breach and has not cured the breach within 10 days after written notice specifying the breach; or (ii) without cause, upon fifteen (15) days prior written notice.
In the event of Licensor’s termination of this Agreement for any reason, ISO is prohibited from registering and creating a new account using the name of ISO, a fake or borrowed name, or the name of any third party, even if ISO may be acting on behalf of any such third party. Additionally, Licensor reserves the right to pursue legal action, including civil, criminal, and injunctive remedies.
10.3 Termination upon Insolvency. 10.3 Termination upon Insolvency. Licensor may terminate this Agreement and all licenses granted hereunder immediately and without notice if ISO: (i) admits in writing its inability to pay its debts as they become due, (ii) makes a general assignment for the benefit of creditors, (iii) initiates voluntary bankruptcy proceedings or consents to bankruptcy petitions against it, (iv) is adjudicated as bankrupt or insolvent by a court of competent jurisdiction, (v) seeks reorganization under any bankruptcy act or consents to the filing of such reorganization petitions, or (vi) ceases to conduct business itself or through a successor
10.4 Effect of Termination. Upon termination or expiration of this Agreement, Licensor shall disconnect ISO’s access to and use of the Licensor Platform, and ISO’s right to use the Licensor Platform shall automatically terminate. Termination shall not affect the obligations of the parties that are intended to survive termination of this Agreement.
11. CONFIDENTIAL INFORMATION.
11.1 Definition. “Confidential Information” means any non-public, confidential and/or proprietary information that ISO, as a receiving Party (“Recipient”) receives, directly or indirectly, from Licensor, as the disclosing Party (“Discloser”), including, without limitation (i) the Licensor Platform, the Licensor Data, the information pertaining to an MCA as such appears in the Licensor Platform, the Licensor Fees collected for ISO’s use the Licensor Platform, the terms of any agreement between Licensor and any Person or MCA, and (iii) any results achieved by ISO’s use of the Licensor Platform with respect to any other Merchants.
11.2 Exclusions. Notwithstanding the previous paragraph, Confidential Information shall not include information that a Recipient can demonstrate: (a) is or legally becomes publicly available through no act or omission of Recipient; (b) was in Recipient’s lawful possession prior to the disclosure and had not been obtained by Recipient from Discloser; or (c) is lawfully disclosed to Recipient by a third party not bound by a duty of non-disclosure to Discloser.
11.3 Nondisclosure. Recipient agrees to hold the Confidential Information in strict confidence. Recipient agrees not to disclose the Confidential Information other than as contemplated herein or to use the Confidential Information for any purpose other than performing its obligations under this Agreement. Recipient agrees to use the same degree of care that it uses to protect its own confidential information of a similar nature and value, but in no event less than a reasonable standard of care, to ensure that Confidential Information is not disclosed or distributed in violation of the provisions of this Agreement. Recipient represents that it has, with each of its employees who may have access to any Confidential Information, an appropriate agreement sufficient to enable it to comply with all of the terms of this Section.
11.4 Required Disclosure. Notwithstanding anything to the contrary set forth in this Agreement, a Discloser’s Confidential Information may be disclosed to the extent that such disclosure is required by law or court order, provided, however, that the Person disclosing such Confidential Information shall provide Discloser prior written notice of such disclosure and reasonable assistance, at Discloser’s cost and expense, in seeking an order protecting the Confidential Information from public disclosure.
11.5 Termination/Expiration. After termination or expiration of this Agreement, Recipient shall return to Discloser, or otherwise certify the destruction of, any Confidential Information received during the term of this Agreement in Recipient’s possession or custody, unless such Confidential Information is governed by another agreement then in place between Discloser and Recipient.
11.6 Licensor Disclosure of Merchant Data. Notwithstanding anything to the contrary set forth in this Agreement, Licensor shall have a right to use, disclose and share all Merchant Data and any other information input by ISO into the Licensor Platform with Affiliates of Licensor and their respective directors, members, employees, agents and consultants and in connection with the Licensor Permitted Uses. ISO represents and warrants that it has obtained appropriate consent from Merchant for such use and disclosure.
12. NOT A FINANCIAL ADVISOR, PLANNER, BROKER, or TAX ADVISOR.
The Licensor Platform is not intended to provide legal, tax, investment, or financial advice. Licensor is not a financial advisor, planner, broker, or tax advisor nor is it guaranteeing that the Merchant Receivables be sold to any MCA. Licensor is not an agent of either ISO or any MCA. Licensor’s services are only administrative.
13. MISCELLANEOUS.
13.1 Relationship Between The Parties. Licensor is an independent contractor, and no partnership, joint venture, agency or employment relationship is intended or created by this Agreement. No party shall attempt to act, or represent itself as having the power, to bind another party or create any obligation on behalf of another party.
13.2 Notice. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) delivered by hand, (ii) mailed by registered or certified mail or sent by overnight courier, or (iii) when sent, if sent by electronic mail during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next business day. All communications shall be sent to the respective parties at their addresses set forth above or, if sent by electronic mail, to Licensor: legal@bananaexchange.com;
13.3 Waiver. No waiver shall be implied from conduct or failure to enforce rights. No waiver shall be effective unless in writing signed by both parties.
13.4 Severability. In the event that any one or more of the provisions contained herein shall for any reason be held to be unenforceable in any respect under law, such unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such unenforceable provision or provisions had never been contained herein.
13.5 Assignment. ISO may not assign or delegate any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Licensor. Licensor shall be entitled to assign and delegate this Agreement. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
13.6 Availability; Continuity. Licensor reserves the right to change, modify, or remove the contents of the Licensor Platform at any time or for any reason at the sole discretion of Licensor and without notice. Licensor also reserves the right to modify or discontinue all or part of the Licensor Platform without notice at any time and without any liability to Licensor or any third party for any modification, price change, suspension, or discontinuance of the Licensor Platform. Licensor cannot guarantee the Licensor Platform will be available at all times and may experience hardware, software, or other problems or need maintenance related to the Licensor Platform, resulting in interruptions, delays, or errors. Licensor reserves the right to change, revise, update, suspend, discontinue, or otherwise modify the Licensor Platform at any time or for any reason without notice. ISO agrees that Licensor shall have no liability whatsoever for any loss, damage, or inconvenience caused by any inability to access or use the Licensor Platform during any downtime or discontinuance of the Licensor Platform. Nothing in this Agreement will be construed to obligate Licensor to maintain and support the Licensor Platform or to supply any corrections, updates, or releases in connection therewith.
13.7 Governing Law; Dispute Resolution. This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed in all respects according to the laws of the State of New York, without regard to the conflict of law provisions thereof. Each of the Parties expressly submit and consent to the jurisdiction of the state and federal courts located in the County of New York, State of New York with respect to any controversy arising out of or relating to this Agreement. Each of the undersigned irrevocably waive all claims, obligations and defenses that either as applicable, may have regarding such court’s personal or subject matter jurisdiction, venue or inconvenient forum. Each of the Parties to this Agreement hereby waives personal service of any summons or complaint or other process or papers to be issued in any action or proceeding involving any such controversy and hereby agrees that service of such summons or complaint or process may be made by registered or certified mail to the other party at the address appearing in this Agreement. EACH OF THE PARTIES HEREBY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND ARISING ON, OUT OF, BY REASON OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT OR THE INTERPRETATION OR ENFORCEMENT THEREOF OR TO ANY TRANSACTIONS HEREUNDER. Licensor will continue to provide the Licensor Platform to ISO and ISO will continue to upload Merchant Data, during any dispute resolution procedures described in this Section, unless this Agreement has been terminated or expires as contemplated herein.
13.8 Entire Agreement. This Agreement shall constitute the complete agreement between the parties with respect ISO’s ability to use the Licensor Platform, and supersedes all previous agreements or representations, written or oral. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.