TERMS & CONDITIONS

These Terms and Conditions (“Terms”), together with the InTouchPOS Order Form (“Order Form”) to which these Terms are attached (collectively, the “Agreement”), are entered into as of the Effective Date indicated on the Order Form (the “Effective Date”), by and between InTouchPOS By ASSAL Corporation, a California corporation (“ASSAL”), and the customer identified on the Order Form (“Customer”). Assal and Customer may each be individually referred to herein as a “Party” and collectively as the “Parties” to the Agreement.

  1. Scope of Agreement. The Agreement is comprised of these Terms and the terms set forth in the Order Form. Any capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Order Form. In the event of any conflict or inconsistency between these Terms and any terms set forth in the Order Form, these Terms shall govern and control. These Terms prevail over any of Customer’s standard terms and conditions. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
  2. InTouchPOS System. ASSAL has developed certain software commonly known as InTouchPOS (“Software”) that, together with the hardware identified on the Order Form (“Hardware”), creates a solution that provides the tools necessary to efficiently operate a quick service or table service restaurant (collectively, the “System”).
  3. Hardware. Customer may procure the Hardware directly from ASSAL or leasing the Hardware from an independent third party selected by Customer in its sole discretion (“Lessor”). Customer acknowledges and agrees that it is Customer’s sole responsibility to determine whether to purchase or lease the Hardware and that it makes such determination at its own risk. If Customer elects to lease the Hardware, Customer shall be solely responsible for selecting a Lessor and completing Lessor’s lease application. Customer acknowledges and agrees that any Lessors that ASSAL may identify are independent and unaffiliated third parties. ASSAL makes no representation or warranty that any Lessor will offer financing to Customer. In no event shall ASSAL be responsible or liable to Customer for any act or omission of such Lessor. Upon Customer’s execution of the Order Form, Customer shall pay to ASSAL a deposit in the amount of ten percent (10%) of the total fees specified in the Order Form, which ASSAL shall be entitled to hold pending execution of the lease agreement between Lessor and Customer. If such Lessor approves the financing, then upon execution by both Lessor and Customer of the lease agreement and other required documentation, ASSAL will proceed to install the Hardware in accordance with these Terms. Upon Lessor’s payment to ASSAL of the total fees set forth in the Order Form, ASSAL will enable the System for use in accordance with these Terms and will return the deposit to Customer.
  4. Delivery of Hardware. The Hardware will be delivered within a reasonable time after ASSAL’s receipt of Customer’s signed Order Form, subject to availability of the Hardware. ASSAL shall not be liable to Customer for any delays, loss or damage in transit. Upon delivery (FOB) of the Hardware at the location specified in the Order Form or such other location as may be agreed to by the Parties in writing, all risk of loss shall pass to Customer. Title to the Hardware shall pass to Customer only upon Customer’s full payment of the applicable fees for such Hardware as specified in the Order Form. As collateral security for the payment of the purchase price of the Hardware, Customer hereby grants to ASSAL a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Hardware, wherever located, and whether now existing
    or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
  5. Software.

    1. License Grant. Subject to the terms and conditions of the Agreement, ASSAL hereby grants to Customer a limited, non- exclusive, non-transferable, non-sublicensable and terminable license during the Term to use the Software on one single central processing unit (CPU) at a time, solely for Customer’s internal use of the System in accordance with these Terms.
    2. Restrictions. Customer shall not access, use, modify, exploit or disclose the Software or System for any purpose or in any manner that is inconsistent with these Terms. Except as expressly permitted hereunder, Customer shall not: (a) transfer, distribute, sell, lease, license or otherwise make any aspect or portion of the Software or System available to a third party; (b) reproduce, copy, translate, modify, adapt, decompile, disassemble, create derivative works from or reverse engineer the object code version of or otherwise attempt to secure the source code of all or any part of the Software or System or access the Software or System in order to build a similar or competitive product or service, except strictly as and to the extent expressly authorized by applicable law; (c) obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software, System or Documentation; or (d) assign, sublicense, sell, resell, lease, rent, transfer, convey, pledge as security or otherwise encumber the Software or System.
    3. Monitoring. ASSAL shall have the right to monitor and audit Customer’s use of the Solution without notice and by any means, including, without limitation, remote means, to verify Customer’s compliance with these Terms. Customer shall be responsible for ensuring that its employees and independent contractors comply with these Terms and Customer shall be liable for any breach of these Terms by its employees, independent contractors and agents.
    4. Reservation of Rights. All rights, title and interests in and to the Software, and all copies and versions thereof, including, without limitation, all intellectual property rights embodied therein and related thereto, including all derivatives thereof, are and shall remain the exclusive property of ASSAL. All rights in and to the Software not granted to Customer hereunder are reserved to ASSAL.
    5. Third Party Licenses. The Parties acknowledge and agree that the System requires a third-party operating system which may be licensed through ASSAL or directly from such third-party licensor. ASSAL makes no representations or warranties as to any third-party software or its operation, regardless of whether such third- party software is provided by ASSAL or the applicable third party.
  6. Services.
    1. Preparation of Customer’s Site. Customer shall, at its sole cost and expense, be responsible for preparing its facility and the installation site in accordance with ASSAL’s instructions. Except for materials provided by ASSAL, Customer shall be solely responsible for network wiring, electrical interconnections, telephone lines, dedicated electrical outlets, monitor stands, printer stands, shelving, machinery, equipment interfaced to the System and any necessary
      modifications to its facilities for proper installation of the Hardware and System. Customer acknowledges and agrees that: (a) the System is based on a highly sophisticated hardware package and therefore careful attention must be given to the A/C power and grounding system supplying the System; and (b) installation of the power and grounding system, in accordance with ASSAL’s instructions, are essential to minimize the possibility of interference and equipment damage and will greatly enhance the performance and reliability of the System. Any problems with the System caused by Customer’s failure to adequately prepare or maintain the computing environment as recommended by ASSAL shall be Customer’s sole responsibility, and any services required to correct such problems shall be separately charged to Customer pursuant to a separate, written agreement between Customer and ASSAL. In the event Customer fails to prepare or maintain its facilities and/or the computing environment in accordance with the Documentation and ASSAL’s specifications and recommendations, all warranties (expressed, implied, statutory or otherwise) relating to the Software and System are null and void.
    2. Implementation Services. Subject to Customer’s obligations under Section 4.1, ASSAL will install the required cabling for interconnecting System components and will configure and install the System consistent with the Documentation (“Implementation Services”). The System shall be deemed accepted by Customer immediately upon implementation of the System by ASSAL. In the event Customer requests that ASSAL perform services to implement
      any special or unique configurations relating to the Hardware, System or Software, such services will be separately charged to Customer as Professional Services pursuant to Section 6.5 below.
    3. Training Services. ASSAL will provide certain training to Customer in accordance with the Order Form; provided, however, in all cases ASSAL is only responsible for training Customer’s manager or company trainer. Customer shall be solely responsible for training its employees and personnel.
    4. Support Services. ASSAL will, at no cost to Customer, provide support and maintenance services (“Support Services”) for the first thirty (30) days after installation of the System. Following such thirty (30) day period, the applicable fees for any Support Services performed by ASSAL will be separately charged to Customer pursuant
      to a separate, written agreement between the Parties.
    5. Professional Services. From time to time throughout the Term, ASSAL may provide billable professional services to Customer, which may include development or other professional services (collectively, “Professional Services”) by entering into one or more statements of work (each, a “SOW”). Each SOW shall be signed by both Parties and shall set forth, at a minimum, the specific Professional Services to be performed by ASSAL; and (b) the fees and payment
      terms for the provision of such Professional Services. The Implementation Services, Professional Services and Support Services are collectively referred to herein as the “Services.”
    6. Excluded Services. The following services are outside the scope of Implementation Services and Support Services: (a) special or unique requests or configurations relating to the Hardware, System or Software; (b) service to the Software or System which has been subject to any changes, alterations, updates, modification or enhancements not provided by ASSAL under or pursuant to these Terms; (c) service for the System that is not up-to-date with all maintenance releases and updates, due to Customer’s request or instruction that ASSAL not implement such required maintenance releases or updates; (d) service which becomes necessary due to (i) failure of, or issues arising from, Customer’s or any third party’s services, software or equipment, (ii) negligent or intentional misuse of the Solution by Customer or its personnel, (iii) incorrect use, abuse or corruption of the System or by use of the System with other computer programs or on equipment which ASSAL has advised not to use with the System, (iv) any inaccuracies, delays, interruptions, or errors
      occurring as a result of incorrect data or data which does not conform to required input formats, or (v) use of the System in a manner which does not conform with these Terms and/or the Documentation; and (d) services performed at Customer’s site (other than fee-based Professional Services) unless the Parties otherwise agree in writing (collectively, “Excluded Services”). Customer’s may elect to use billable Professional Services in order to resolve issues associated with
      Excluded Services. [Cabling services, Menu modification, Electrical services, Wall Mounting, Credit Card & Gift Card setup modification, Internet (IP) setup modification].
  7. Intellectual Property Rights.
    1. ASSAL Assets. As between the Parties, all worldwide rights, title and interests in and to the Software and System, and any intellectual property developed, owned or licensed by ASSAL or developed, created or obtained by ASSAL, and all copies and versions thereof, including all derivatives thereof and all intellectual property rights in any of the foregoing (collectively, “ASSAL Assets”), are and shall remain the exclusive property of ASSAL or its licensors (as applicable). Subject to the express licenses granted to Customer under these Terms, Customer shall have no rights or interests in or to any ASSAL Assets.
    2. Feedback. Customer may provide ASSAL with feedback, ideas or suggestions relating to the Hardware, Software or
      Services (collectively “Feedback”). If Customer provides any Feedback, then ASSAL may use such Feedback for any purpose without any obligation to Customer. Customer hereby grants to ASSAL a royalty-free, irrevocable, perpetual, non-exclusive, sublicensable, transferable, worldwide license to use, sell, copy, distribute, modify, create derivative works based on and exploit the Feedback for any purpose.
    3. Customer Data. As between the Parties, all rights, title and interests in and to any data collected by or on behalf of Customer (“Customer Data”) are and shall remain the exclusive property of Customer. Customer acknowledges and agrees that ASSAL shall have no obligation to monitor or safeguard any Customer Data and that ASSAL shall have no liability whatsoever (including, without limitation, damages or losses caused by viruses or malicious code in Customer Data) to Customer or any third party for the content, use, possession, disclosure, accuracy or other aspect of such Customer Data. Customer shall, at its sole cost and expense, ensure that Customer Data does not: (a) violate any applicable laws; (b) infringe, misappropriate or otherwise violate any intellectual property rights or propriety rights of a third party; (c) infringe upon or otherwise violate a third party’s privacy rights or right of publicity; or (d) contain any
      virus or other malicious code. Customer shall implement and maintain adequate measures to screen for viruses and other malicious code before Customer collects, inputs or uploads any Customer Data to the System or otherwise transmits such Customer Data to ASSAL.
  8. Term and Termination. The term of the Agreement shall commence on the Effective Date and remain in full force and effect unless terminated in accordance with these Terms (the “Term”). Either Party may, at its option, terminate the Agreement in the event of a material breach by the other Party, provided that such termination may be effected only through a written notice to the breaching Party that specifically identifies and describes the material breach on which such notice of termination is based. The breaching Party shall have the right to cure such material breach, provided that the breach is capable of being cured, within thirty (30) days of receipt of such notice, and this Agreement will terminate at the election of the non-breaching Party in the event the breaching Party does not cure such material breach within such thirty (30) day period. Upon any termination of the Agreement, Customer shall cease all use of the Software and System.

  9. Payment.
    1. Fees. In consideration of the rights granted to Customer hereunder, Customer shall pay ASSAL the fees set forth on the Order Form (“Fees”) in accordance with these Terms. Customer shall pay ASSAL fifty percent (50%) of the Fees on the Effective Date and the remaining fifty percent (50%) of the Fees upon delivery of the Hardware and Software. Customer acknowledges and agrees that all Fees due hereunder are non-refundable. In the event the System (or any part thereof) cannot be shipped due to Customer’s request or refusal or inability to accept such shipment, all unpaid Fees shall become due within thirty (30) days after ASSAL notifies Customer in writing (email sufficient) that the System is ready for shipment and Customer shall also be liable for any storage costs and expenses incurred thereby. For the avoidance of doubt, ASSAL shall have the absolute right to withhold or disable the System until all Fees have been paid to ASSAL. [SUBSCRIPTION FEES AND PAYMENT TERMS]
      3-year (36 month) minimum contract commitment required. Monthly Subscription fees are due every month by customer submitting ACH form to InTouchPOS. InTouchPOS has the right to disable and disconnect the usage of the InTouchPOS System if the ACH payments are not received or cannot be processed.
    2. Taxes. The Parties acknowledge and agree that the Fees do not include any direct or indirect local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including, without limitation, value-added, use and withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on ASSAL’s net income or property. If ASSAL has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 9.2, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides ASSAL with a valid tax exemption certificate authorized by the appropriate taxing authority.
    3. Late Payments. Customer shall pay ASSAL interest at the rate of twelve percent (12%) per annum, or the maximum legal rate, whichever is less, on any overdue amounts until paid.
    4. Credit Reporting. ASSAL reserves the right to report negative payment information to National Credit Bureaus (i.e.,
      Experian, Trans Union and Equifax), which may affect Customer’s credit if full payment of the applicable Fees is not received upon delivery of the System in accordance with these Terms.
    5. Statements of Work. Customer acknowledges and agrees that requests for certain products or services, including, without limitation, customizations, are not included in the Fees and shall be separately charged to Customer pursuant to an SOW that sets forth all material terms and is signed by both Parties. All fees for any Professional Services performed under an SOW shall be due and payable as follows: fifty percent (50%) upon execution of the applicable SOW and the remaining fifty percent (50%) upon completion of the Professional Services under the applicable SOW.
  10. Representations and Warranties.
    1. Mutual Representations and Warranties. Each Party represents and warrants that it has: (a) all requisite legal and corporate power to execute and deliver this Agreement; (b) taken all corporate action necessary for the authorization, execution and delivery of this Agreement; (c) no agreement or understanding with any third party that interferes or will interfere with the performance of their respective obligations hereunder; (d) obtained and shall maintain all rights,
      approvals and consents necessary to perform their respective obligations hereunder; and (e) taken all action required or necessary to make such agreements legal, valid and binding obligations upon them.
    2. Customer’s Representations and Warranties. Customer represents and warrants that: (a) all Customer Data and any other data collected by Customer and transmitted or disclosed to ASSAL complies with Customer’s privacy policy and all applicable laws; (b) it has obtained all necessary consents to collect, use, store, modify and disclose all information contained in the Customer Data; (c) it can and shall comply with all applicable laws in exercising its rights and performing its obligations hereunder; (d) no notice or charge of non-compliance with any applicable law has been asserted or filed against Customer that may impair its ability to perform hereunder; and (e) it shall not perform or fail to perform any act that it knows or reasonably should know would place ASSAL in violation of any applicable law.
    3. Hardware Warranty. For a period of twelve (12) months following the delivery of the Hardware to Customer (the “Hardware Warranty Period”), ASSAL warrants that such Hardware shall be free from material defects under normal use and service. If, within the Hardware Warranty Period, such Hardware fails to comply with the warranty and contains a material defect, ASSAL shall, at its sole election, repair or replace such Hardware at no additional cost to
      Customer, provided that for any such defect identified by Customer, Customer notifies ASSAL in writing of such defect in reasonable detail. ASSAL will endeavor to replace or repair such Hardware within a reasonable period following such notification by Customer, with the reasonableness of the response and correction time being determined by ASSAL in its sole discretion based upon the nature and severity of the applicable defect. This Section sets forth Customer’s sole and
      exclusive remedy, and ASSAL’s sole and exclusive obligation, with respect to any claim that the Hardware fails to comply with the warranty set forth in this Section. Customer acknowledges and agrees that certain manufacturers of the Hardware may offer a warranty that is longer than the Hardware Warranty Period set forth herein and, in some cases, such manufacturers may offer extended warranties at an additional cost to Customer. Customer shall be solely responsible for utilizing and/or purchasing such warranties. ASSAL shall have no obligation under this Section to make warranty repairs to the extent the warranty failure is attributable to: (a) Customer’s failure to maintain the Hardware as recommended by ASSAL; (b) modification of the Hardware by anyone other than ASSAL; (c) Customer’s failure to use
      corrections made available by ASSAL, after a reasonable time to implement such corrections; (d) Customer’s unauthorized use of the Hardware or use of the Hardware in combination with any product not supplied or otherwise authorized by ASSAL; (e) the quality or integrity of data from other automated or manual systems with which the
      Hardware interfaces, unless such systems are supplied by or under the control of ASSAL; or (f) operation or utilization of the Hardware in a manner not contemplated by the Agreement. If any such exception applies, Customer shall compensate ASSAL for its time (to the extent such warranty efforts and associated fees were approved in advance by
      Customer) and any out-of-pocket expenses actually incurred in rendering services to Customer in remedying such condition.
    4. Software Warranty. ASSAL warrants that the Software will substantially conform to the manuals and documentation that ASSAL provides to Customer in connection with the Software (“Documentation”) for a period of six (6) months after delivery of such Software. The foregoing warranty excludes defects resulting from Customer’s negligent or intentional acts or omissions or any unauthorized repairs, modifications or enhancements to the Software.
    5. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.3 and SECTION 8.4, ASSAL MAKES NO REPRESENTATIONS AND GIVES NO WARRANTIES, GUARANTEES OR ASSURANCES OF ANY KIND, EITHER EXPRESS OR IMPLIED (IN LAW OR IN FACT), AND ASSAL EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, QUALITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT OR ANY REPRESENTATION, WARRANTY OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE. ASSAL
      DOES NOT WARRANT THAT THE SOFTWARE, SYSTEM, SERVICES, DOCUMENTATION OR OTHER INFORMATION OR MATERIALS PROVIDED TO CUSTOMER HEREUNDER WILL SATISFY CUSTOMER’S REQUIREMENTS, WILL CONFORM TO ANY DESCRIPTION THEREOF, OR WILL BE UNINTERRUPTED OR FREE OF OMISSIONS, ERRORS OR DEFECTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE, SYSTEM AND DOCUMENTATION ARE PROVIDED “AS IS” AND THAT ASSAL DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, SERVICES OR MATERIALS.
  11. Indemnification.
    1. Customer Indemnity. Customer shall indemnify, defend and hold harmless ASSAL and its shareholders, members, managers, directors, officers and employees from and against all demands, allegations, claims, actions, causes of action, damages, costs and expenses (including attorneys’ fees), liabilities and losses of any kind whatsoever (collectively, “Claims”) brought by or on behalf of any third party arising out of or in connection with: (a) violation of applicable law by Customer; (b) any breach of this Agreement by Customer; and (c) claims relating to possession or use of Customer Data by ASSAL in accordance with these Terms.
    2. ASSAL Indemnity. ASSAL shall indemnify, defend and hold harmless Customer and its shareholders, members, managers, directors, officers and employees from and against all Claims brought by or on behalf of any third party arising out of or in connection with any claim that the Software infringes a United States patent or copyright; provided, however, that: (a) Customer gives ASSAL prompt written notice of any such claim; (b) ASSAL will have the right to control and direct the defense of such claim; and (c) Customer must fully cooperate with ASSAL in such defense.
    3. Intellectual Property Rights Exclusions. ASSAL shall have no obligations under Section 9-b or any other liability for any claim of infringement or misappropriation resulting or alleged to result from: (a) any modification, alteration or enhancement to the Software by any person or entity other than ASSAL; (b) any use of the Software by Customer in any manner for which the Software was not designed or otherwise in a manner inconsistent with the Documentation; (c) the
      combination, operation or use of the Software or any part thereof in combination with any equipment, software, data or documentation not approved by ASSAL; (d) materials, items, resources, or services provided or performed by Customer (whether or not used in connection with or incorporated into the Software); and (e) Customer’s continuing the allegedly infringing activity after being notified thereof or after being informed of and provided with modifications that would have
      avoided the alleged infringement.
    4. Intellectual Property Rights Remedies. In the event an infringement claim as described in Section 9.2 arises, or if ASSAL reasonably believes that a claim is likely to be made, ASSAL shall have the right, at its sole option and in lieu of indemnification, to: (a) modify the Software to become non-infringing but functionally equivalent; or (b) replace the Software with material that is non-infringing but functionally equivalent; or (c) obtain for Customer the right to use the Software upon commercially reasonable terms; or (d) remove the infringing aspect of the Software if it can be removed
      without material degradation of the Software. Section 9 sets forth Customer’s sole and exclusive remedy and ASSAL’s entire liability with respect to intellectual property infringement or misappropriation claims, including patent or copyright infringement claims.
    5. Procedure. The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim for which it believes it is entitled to indemnification hereunder. Failure or delay in providing such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder, except to the extent the indemnifying Party demonstrates that the defense or settlement of the Claim has been prejudiced thereby. Subject to the terms herein, the
      indemnifying Party shall have the right to control the defense and settlement of any Claim or may at any time tender control of the defense or settlement of such Claim to the indemnified Party. The indemnified Party shall have the right to approve of counsel retained by the indemnifying Party for such Claim (such approval not to be unreasonably withheld, conditioned or delayed), and may, at its own cost, elect to participate in the defense or settlement of any Claim with
      counsel of its choice. No compromise or settlement other than solely for an amount of money may be committed to by the indemnifying Party without the indemnified Party’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed.
  12. Limitation of Liability. Limitation of Liability. IN NO EVENT SHALL ASSAL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, NOR FOR ANY LOST PROFITS OR REVENUES, ARISING OUT OF OR RELATING TO THE AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE REASONABLY FORESEEABLE. THE MAXIMUM AGGREGATE LIABILITY OF ASSAL TO CUSTOMER, FOR ANY REASON AND UPON ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE TOTAL FEES PAID BY COMPANY TO ASSAL UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE REASONABLY FORESEEABLE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR WARRANTY.
  13. Confidentiality. Any non-public information or materials belonging ASSAL that is disclosed or otherwise made available
    (directly or indirectly) to Customer in connection with the Agreement and which is of a type that a reasonable person would recognize it to be confidential or proprietary shall be considered confidential information (collectively, “Confidential Information”). During the Term and for a period of two (2) years thereafter, or in the event an item is a trade secret, for so long as the item remains a trade secret, Customer shall hold all Confidential Information in strict confidence and avoid the disclosure thereof to any third party by using the same degree of care as it uses to avoid the unauthorized disclosure of its own
    Confidential Information, but not less than reasonable care. Customer shall restrict the possession and use of Confidential Information to its employees who have a need to know and are bound by confidentiality obligations no less stringent than those contained herein. Customer shall promptly notify ASSAL of any unauthorized disclosure or use of
    Confidential Information. Customer may disclose Confidential Information as required by law, provided that it discloses only such information as is required by law and uses reasonable efforts to notify ASSAL of such disclosure. Confidential Information shall not include information that: (a) was known by Customer before disclosure by ASSAL; (b) becomes public knowledge or known to Customer after such disclosure, other than by breach of a confidentiality obligation; or (c) is independently developed by Customer by persons without access to such information. Upon expiration or termination of this Agreement,
    Customer shall promptly return or destroy, at ASSAL’s direction, all Confidential Information in its possession, custody or control and, if requested, deliver an affidavit to ASSAL certifying that it has returned or destroyed such Confidential Information as set forth herein.
  14. Additional Provisions.
    1. Further Assurances. Each Party covenants and agrees to execute and deliver or cause to be executed and delivered to the other Parties such instruments or further assurances as may, in the reasonable opinion of such other Party, be necessary or desirable to give effect to the provisions of this Agreement.
    2. Force Majeure. Neither Party will be deemed to be in default or breach hereunder, or will be liable to the other Party, for any delay or failure to perform any of its obligations under these Terms (except for the obligation to pay any applicable fees when due) if such delay or failure results from any event or circumstance beyond that Party’s reasonable control (“Force Majeure Event”).
    3. Relationship. The Parties shall at all times be independent contractors with respect to each other in carrying out this
      Agreement, and nothing herein renders them partners, joint ventures, agents, or employer and employee. This Agreement is for the sole benefit of the Parties and their successors and permitted assigns, and there are no third-party beneficiaries to this Agreement.
    4. Assignment. The Agreement shall be binding on the Parties and their successors and permitted assigns. Neither Party shall assign, transfer or delegate any of its rights, duties or obligations under the Agreement, or any part thereof, whether by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that ASSAL shall have the right to assign this Agreement without the need to obtain the consent of Customer in connection with the sale or acquisition of its business to which the Agreement relates, whether by merger, sale of stock, sale of assets or
      otherwise. Any permitted assignee shall assume all assigned obligations of its assignor under these Terms. Any purported
      assignment in violation of this Section shall be void and of no effect.
    5. Modifications; Waiver. This Agreement may be modified only by a writing executed by authorized representatives of
      both Parties. No delay or omission by a Party to exercise any right occurring upon any breach or default by the other Party of the terms herein shall impair such right or be construed to be a waiver thereof.
    6. Severability. In the event any provision of this Agreement is determined by a court of competent jurisdiction to be
      invalid or unenforceable, such provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement shall continue in full force and effect.
    7. Notices. All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving Party as set forth below or on the Order Form (or such other address as may be designated by a Party by written notice to the other Party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally recognized express courier, and shall be deemed complete upon receipt.
    8. Governing Law; Venue. This Agreement shall be governed by the laws of California, without reference to the principles of conflicts of law that would apply the substantive laws of another jurisdiction. Each Party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California over any dispute arising out of or relating to this Agreement and waives the right to object to such venue or make a claim of forum non convenience.
      Notwithstanding the foregoing, nothing herein shall prevent ASSAL from commencing an action for the purpose of seeking immediate injunctive relief in the appropriate jurisdiction.
    9. Injunctive Relief. Customer acknowledges that any use of the ASSAL Assets or ASSAL’s Confidential Information in a
      manner inconsistent with these Terms shall cause irreparable injury to ASSAL for which ASSAL will not have an adequate remedy at law and ASSAL shall be entitled to equitable relief, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions.
    10. Survival. Any provision of this Agreement that is expressly stated to survive or contemplates performance or observance subsequent to any expiration or termination of this Agreement, or which is otherwise necessary to interpret the respective rights and obligations of the parties hereunder, shall survive any expiration or termination of this Agreement and continue in full force and effect.
    11. Headings; Construction. The headings contained herein are for convenience only and shall not affect the interpretation of this Agreement. Any principle of construction or rule of law providing that an agreement shall be construed against the drafter in the event of any ambiguity in such agreement shall not apply to this Agreement.
    12. Entire Agreement. These Terms, together with the Order Form, sets forth the entire, final and exclusive agreement among the Parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, among the Parties.
    13. Non-Disparagement: The parties expressly acknowledge that their reputation on the internet is vital to the success
      of their respective businesses. Accordingly, the parties agree that neither shall make any disparaging comments or accusations detrimental to the reputation, business, or business relationships of the other, except in connection with legal proceedings. In the event, Client publishes or otherwise disseminates any false, disparaging, defamatory or derogatory information about InTouchPOS By ASSAL Corporation InTouchPOS by ASSAL Corporation reserves the right to terminate this Agreement immediately. Upon termination under this provision, any outstanding balances and unpaid marketing will immediately be due. The Parties agree that any published statements will be removed pending the outcome of the arbitration.