Effective: January 9, 2023
BY EXECUTING AN ORDER FORM AND MERCHANT APPLICATION AND/OR MASTER SERVICES AGREEMENT THAT INCORPORATES THIS MERCHANT AGREEMENT (THE "AGREEMENT" OR "MERCHANT AGREEMENT") OR BY USING ANY SERVICES, SOFTWARE OR HARDWARE PROVIDED OR OTHERWISE MADE AVAILABLE BY STOVE, INC. ("STOVE"), MERCHANT AGREES TO BE BOUND BY AND COMPLY WITH THE FOLLOWING: THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PAYMENT PROCESSING TERMS, THE STOVE PRIVACY STATEMENT, THE STOVE TAKEOUT TERMS OF SERVICE, AND ALL OTHER TERMS, CONDITIONS, AND POLICIES PERTAINING TO THE SERVICES AS DESCRIBED HEREIN, ALL OF WHICH ARE INCORPORATED INTO THIS MERCHANT AGREEMENT BY REFERENCE (COLLECTIVELY, THE "ADDITIONAL TERMS"), AS APPLICABLE TO THE SPECIFIC SERVICES MERCHANT USES.
IF MERCHANT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, OR ANY OF THE ADDITIONAL TERMS, MERCHANT MAY NOT USE, AND SHALL CEASE USING, ANY STOVE SERVICES, SOFTWARE OR HARDWARE. CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN SECTION 18 (DEFINITIONS). WHERE APPLICABLE, CERTAIN REFERENCES TO STOVE MAY ALSO BE DEEMED TO INCLUDE STOVE'S BANK PARTNERS AND/OR PAYMENT PROVIDER(S), WHICH MAY BE UPDATED FROM TIME TO TIME WITHOUT NOTICE TO MERCHANT. THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE MERCHANT TO SUBMIT CLAIMS MERCHANT HAS AGAINST STOVE TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) MERCHANT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST STOVE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) MERCHANT WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Merchant and STOVE hereby agree as follows:
The Agreement applies to and governs Merchant's access to and use of the Services, Hardware, and Professional Services ordered by Merchant under an Order. The Services may include, but may not be limited to, (a) mobile and web applications for use by Merchant's Employees and Customers to place orders and process Payments; (b) processing of Payments and facilitating payment of Net Sales Proceeds to Merchant's Bank Account; (c) providing Merchant with certain reporting on its sales and activities; and (d) working with Merchant with respect to any Customer inquiries related to Payments or placing orders, in each case under Merchant's STOVE Account.
2.1. Subject to Merchant's compliance with the terms and conditions of the Agreement, STOVE grants to Merchant a limited, non-transferable (except in accordance with Section 17.4 below), non-sub-licensable, nonexclusive, revocable license during the Term to permit Employees to access and use the Services solely and exclusively for Merchant's internal business purposes. The Services are licensed, not sold, and Merchant acknowledges that it does not acquire any license to use the Services in excess of the scope and duration of the license to the Services specified in the Agreement. This license does not grant to Merchant or any other party any right to copy, modify, enhance, or transfer the Services or otherwise disclose any Confidential Information disclosed by STOVE to any third party, including without limitation any Intellectual Property Rights (as more fully described in Section 5.1 below).
2.2. Merchant is (a) solely responsible for maintaining the security and control of its premises, equipment (including Hardware and associated firmware), and username(s) and access passwords to its STOVE Account; and (b) fully liable for all activity of its Employees and Customers that occur under its STOVE Account, whether authorized by Merchant or not. Merchant agrees to immediately notify STOVE if it becomes aware of any unauthorized activity under its STOVE Account and will cooperate with STOVE to prevent any further unauthorized activity. Furthermore, regarding Hardware being shipped to the Merchant, Merchant agrees that change of title and ownership, and risk of loss, shall transfer to Merchant at the point of shipment.
2.3. As part of the Services, STOVE may provide access to the STOVE Platform, including certain STOVE Apps. When Employees download or use the STOVE Platform or any Employee-facing STOVE App, Merchant must ensure its Employees read and agree to the End User License Agreement on their own behalf or on behalf of Merchant, as applicable, which protects STOVE's rights in the Services and allows use of the applicable STOVE App only for the purposes of Merchant (including its Employees) accessing and using the Services in accordance with this Section 2 and Section 4 below. Merchants who elect to use STOVE Digital Ordering Services will be subjected to the STOVE Digital Ordering Terms.
2.4. As part of the Services, STOVE may from time to time communicate with Merchant using the contact methods provided by Merchant at the time of application and/or during Merchant's use of the Services, Hardware or Professional Services. Merchant expressly agrees that if it or any of its Employees provide a mobile phone number or email address to STOVE, STOVE is authorized to contact Merchant or Employees, including without limitation at that number or email address using autodialed or prerecorded message calls or text messages in order to provide transactional, servicing, and account-related messages to Merchant.
3.1. If Merchant orders any Professional Services under an Order, then, upon request from STOVE, Merchant will promptly provide STOVE with any information, resources and assistance required by STOVE to enable the implementation of the Services or ongoing provision of the Services for Merchant's purposes as described on the Order and, if applicable, to provide training to the Employees. Any dates specified in an Order are estimates only and are contingent upon Merchant's timely compliance with its obligations relative to such implementation and any dependencies on Merchant's performance. If, and to the extent of, any default or breach on the part of STOVE under this Agreement that is caused in whole or in part as a result of Merchant's failure to timely perform its obligations under this Agreement and/or any Order, then STOVE shall be entitled to relief from all liability with respect to such failure or delay, and may, in its sole discretion, terminate the Agreement, or any part thereof, upon five (5) days' prior written notice to Merchant.
4.1. Merchant will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with STOVE's provisioning of the Services (including but not limited to the use of automated systems or software (e.g. screen scraping) to extract data from the STOVE Platform or other aspects of the Services); (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant's use of the Services that are posted on or through the STOVE Platform or otherwise provided or made available to Merchant, including, without limitation, any action or inaction taken contrary to the requirements of PCI-DSS; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third-party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Service or STOVE's network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user Platform.
4.2. Merchant represents, warrants and covenants that (a) any sales transaction submitted by Merchant will represent a bona fide sale of goods or services by Merchant to a Customer; (b) any sales transactions submitted by Merchant will accurately describe the goods and/or services sold and delivered to a Customer; (c) Merchant will fulfill all of its obligations to each Customer for which Merchant submits a transaction and will resolve any consumer dispute or complaint directly with Customer; (d) Merchant and all transactions initiated by Merchant will comply with Applicable Law and Rules; (e) except in the ordinary course of business, no sales transaction submitted by Merchant through the Services will represent a sale to any principal, partner, proprietor, or owner of Merchant's entity; (f) neither Merchant nor any of its Employees shall retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by Applicable Law and Rules, or this Agreement, or engage in the unauthorized use, transfer or disclosure of the same; (g) Merchant's use of the Services will be in compliance with this Agreement; and (h) Merchant has put in place appropriate policies as well as technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, the Hardware and Merchant's obligations under this Agreement. Except as otherwise permitted by STOVE in writing, the payment processing portion of the Services may only be used in the United States of America; provided, that STOVE reserves the right to restrict Merchant's ability to accept certain Card payments in United States territories. As such, Merchant may not export or otherwise make available the payment processing portion of the Services directly or indirectly, outside of the United States of America, and Merchant acknowledges that the Services may be subject to export restrictions imposed by Applicable Law and Rules, including U.S. Export Administration Regulations (15 C.F.R. Chapter VII). Merchant acknowledges and agrees that Merchant is solely responsible for its own compliance with Applicable Law and Rules.
4.3. Merchant will use the Services only for its management and operation of its own business, and not for any business, services or offerings of non-affiliated third-parties. Without limiting the generality of the foregoing, Merchant will not act as a payment intermediary or aggregator on behalf of any third-party. This means that Merchant may not use the Services to handle, process or transmit funds for any third party. Merchant is also prohibited from using the Services to process cash advances.
4.4. STOVE will review the information that Merchant submits via an Order Form, in connection with Merchant's request to sign up for the Services, and STOVE will forward such information to its payment provider(s). Merchant hereby agrees that STOVE may share information about Merchant and Merchant's Bank Account with its payment provider(s) for the purpose of providing the Services to Merchant or with other third parties for validation purposes. Once Merchant submits its Order Form, which includes the merchant application, STOVE or its payment provider(s) may conclude that Merchant is not permitted to use the Services, in which case STOVE may decide in its sole discretion to discontinue entering into an Agreement with Merchant, or if an Agreement has already been formed, may immediately terminate this Agreement. Merchant shall ensure any information it has provided, including information regarding its Merchant Bank Account, is up to date at all times, shall notify STOVE immediately of any changes thereto and authorizes and instructs STOVE to share any such changes with its payment provider(s).
4.5. Merchant will provide information requested by STOVE, in connection with Merchant's application or ongoing business thereafter, within five (5) business days following such request (unless required sooner under Applicable Law and Rules or by STOVE's payment provider(s)), including without limitation invoices from suppliers, government-issued identification or a business license. Merchant must also provide STOVE with access to inspect Merchant's business location(s) upon request. Merchant, each of its then-current beneficial owners (i.e., persons who directly or indirectly have greater than a 25% ownership stake in Merchant), and its then-current designated control person (i.e., an individual having significant responsibility to control, manage or direct Merchant), each authorize STOVE to obtain–and will provide to STOVE upon request–identity-verifying information about Merchant, beneficial owners, and such designated control person from time to time, including documentation as necessary, consumer reports on Merchant and such beneficial owners and designated control person, including information relative to criminal history, or any other information necessary to comply with the requirements of the Bank Secrecy Act, as amended by the US PATRIOT Act of 2001, or as otherwise amended, modified, or replaced from time to time, as well as requirements of the Office of Foreign Assets Control.
4.6. STOVE may perform maintenance on the Services from time to time, which may result in service interruptions, delays, errors or bugs. STOVE will not be liable for any such interruptions, delays, errors or bugs. STOVE may contact Merchant in order to assist STOVE with the Services and obtain information needed to identify and fix any errors.
4.7. Merchant may access the Services only through devices identified by STOVE as compatible with and capable of accessing or supporting the Services using a wired or wireless connection to the internet. The Services do not function with every device and may only be used on approved STOVE Hardware. STOVE may alter which devices are approved as compatible with the Services in STOVE's discretion from time to time, subject to reasonable notice. Merchant is (a) solely responsible for the payment of any fees that may be imposed by its internet and/or data provider and (b) its use of the Services accessed via the internet is subject to the terms of any agreements in place with such internet and/or data provider and availability and uptime of those services and wireless equipment. STOVE does not warrant, endorse, guarantee, or assume responsibility or liability for any product or service advertised or offered by a third party.
4.8. Merchant will comply with the following requirements in connection with its use of the Services regarding Customer Data collection and communications, including compliance with the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act (2003) and applicable anti-spam legislation.
4.9. Merchant will abide by STOVE's Community Philosophy. STOVE will not tolerate threats, harm, or intimidation tactics towards STOVEers – whether actual, veiled, or implied–including without limitation, derogatory or degrading language, threats, bullying, harassment, and/or intimidation.
4.10. Where applicable, Merchant will hold an active Software subscription license for all Hardware devices.
5.1. As between the parties, all STOVE (and/or its licensors) rights, title, interest, copyright and other worldwide Intellectual Property Rights in and to the Hardware, Services, and Professional Services, including all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features, functionality, applications, or services, whether developed by or on behalf of STOVE provided under the Agreement, is expressly intended to remain vested in STOVE (and/or its licensors). Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns and, to the extent any such assignment cannot be made at present, will assign and transfer all right, title, interest and other worldwide Intellectual Property Rights in and to the Feedback to STOVE, Inc., and acknowledges that STOVE is free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by Merchant or any Employee relating to the Services in STOVE's sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by STOVE.
5.2. Merchant owns all Merchant Data. Merchant hereby grants to STOVE a non-exclusive, royalty-free, fully paid up, and worldwide license to use, copy, modify (including the right to create derivative works of), display and transmit Merchant Data solely in connection with the Services including the development of potential offerings or other future Services under consideration by STOVE (whether developed independently by STOVE or through a third party). Merchant is solely responsible for the accuracy, quality, content and legality (including compliance with all Applicable Law and Rules) of Merchant Data, the means by which Merchant Data is acquired, and any transfer and use of Merchant Data outside of the Services by Merchant or any third party authorized by Merchant. Merchant represents, warrants and covenants that it has all rights necessary to upload the Merchant Data to the Services and to otherwise have such Merchant Data used or shared, as applicable, by STOVE in relation to the Services. Merchant will not upload or store any data or materials containing any such information in violation of this Section.
5.3. Merchant acknowledges and agrees that, in the course of providing the Services to Merchant, both STOVE and Merchant will collect, store and use Customer Data. To the extent Merchant's use of the Customer Data is outside the scope described in this Agreement or within STOVE's Privacy Statement, Merchant shall be solely responsible for putting in place any additional controls (e.g. notice, consent) and governance in relation to such use. Each Party's use of Customer Data shall be in compliance with the Applicable Law and Rules.
5.4. Notwithstanding anything to the contrary in the Agreement, STOVE may create anonymized or aggregated data from Merchant Data, Customer Data and Personal Information that does not identify Merchant, any of your users or Employees or any other identifiable individual.
5.5. Merchant hereby grants STOVE a nonexclusive, royalty-free right and license to use and display Merchant's Marks on its website, marketing collateral and other public disclosures, or to otherwise identify Merchant as a customer of STOVE.
6.1. Merchant will pay all Fees set forth in each Order. All Fees are non-cancelable and non-refundable, except as otherwise provided for herein. Merchant will pay all Fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
6.2. Merchant's Software subscription Fees to access and use the Services will remain unchanged during the Initial Term of this Agreement and will be subject to an automatic increase of three percent (3%) at the beginning of each Renewal Term. STOVE reserves the right to change any other Fees and/or processing rates upon thirty (30) days' prior written notice to Merchant.
6.3. All amounts invoiced hereunder are due and payable as specified in the applicable Order. Unpaid Fees that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month (or 19.56% annually) on any outstanding balance, or the maximum permitted by Applicable Law and Rules, whichever is lower, plus all reasonable expenses of collection, including reasonable attorneys' fees and costs.
6.4. All Fees are exclusive of applicable Taxes, or similarly-related assessments or charges. Merchant will be responsible for, and agrees to pay, all applicable sales, use, excise, personal property, services, value added taxes, taxes of a similar nature, and final withholding taxes.
6.5. STOVE may report annually to the Internal Revenue Service and applicable state tax authorities as required by Applicable Law and Rules.
7.1. Payment Processing Terms are located at Payment Processing Terms.
8.1. The term of this Agreement will commence on the Effective Date and, unless earlier terminated as set forth below, will remain in effect until such time as all outstanding Orders have either expired or terminated in accordance with their terms or the terms of this Agreement. The initial term of an Order will commence upon the earlier of: (i) the Contract Start Date (as defined in the Order), or (ii) the Go-Live Date and, unless terminated earlier as set forth in this Agreement, shall remain in full force and effect for remainder of the initial term outlined in the Order (the "Initial Term"). Thereafter, the term of this Agreement with respect to such applicable order(s) shall automatically renew for successive one (1) year periods (each a "Renewal Term"; collectively, the Initial Term and any subsequent Renewal Term(s) shall be referred to as the "Term").
8.2. STOVE may suspend Merchant's username and password, STOVE Account and access to the Services, and/or may terminate the Agreement upon written notice to Merchant in the event any of the following occur: (a) Merchant fails to make any payment due within thirty (30) days; (b) Merchant provides any inaccurate, untrue or incomplete information or fails to comply with the STOVE Account registration requirements, as determined in STOVE's sole discretion; (c) STOVE determines that Merchant is incurring excessive Chargebacks; (d) Merchant violates Sections 2, 4, 7 or 12; (e) any agreement between STOVE and a payment provider pursuant to which STOVE is authorized to provide access to payment processing services terminates or expires; (f) STOVE determines in its discretion that any change to Applicable Law and Rules would render any portion of the Services illegal; or (g) for any reason upon ninety (90) days' prior written notice to Merchant.
8.3. In the event of a material breach of this Agreement by either party, the non-breaching party will have the right to terminate the applicable Order(s), and/or this Agreement for cause if such breach has not been cured within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach in reasonable detail and the remedy being sought.
8.4. By executing an Order and/or STOVE Master Agreement, use of the STOVE POS or any STOVE provided interface, software or application, Merchant agrees to pay STOVE all Hardware and Software Fees, plus applicable Taxes, indicated in the applicable Order(s), for the total number of Locations indicated therein, and for the entire duration of the then-current Term. Merchant acknowledges and agrees that it may terminate this Agreement at any time during the Term, provided that Merchant shall remain responsible for payment of all Fees for Services provided by STOVE through the date of Termination. Additionally, Merchant shall incur and pay an early termination fee equal to the remaining Software Subscription Fees that would have otherwise been due for the remainder of the then-current Term ("Early Termination Fee"). Merchant further agrees to pay as liquidated fees 1.00% of projected processing of credit cards, gift payments or other digital payment or total orders excluding cash payments for the duration of the remainder of term.
8.5. Upon any termination or expiration of an Order and/or this Agreement, Merchant's right to access and use the Services covered by the applicable Order(s) will terminate. Merchant acknowledges and agrees that STOVE has no obligation to retain Merchant Data and that STOVE will have the right to irretrievably delete and destroy Merchant Data after thirty (30) days following the termination of this Agreement.
9.1. Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.
9.2. Merchant represents, warrants and covenants to STOVE that (a) it is a legal resident of, or is a business entity authorized to conduct business in, any jurisdiction in which it operates; (b) the name identified by Merchant when Merchant registered is its legal name or business name under which it sells goods and/or services; and (c) the taxpayer identification number identified by Merchant is its legal taxpayer identification number.
9.3. Limited Warranty and Return Policy. STOVE represents, warrants and covenants to Merchant that, during the Term, the Software Services will materially conform to the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by STOVE to Merchant. Any Hardware sold by STOVE to Merchant hereunder is covered by STOVE's Limited Warranty Policy and STOVE, Inc. Return Policy available at Return Policy.
9.4. STOVE does not warrant that the Services, which may permit Merchant to process payments or use the Services on a compatible third-party device, will be compatible with all third-party devices or carriers.
9.5. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, STOVE AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. THE SERVICES ARE PROVIDED TO MERCHANT ON AN "AS IS" BASIS.
10.1. IN NO EVENT WILL STOVE BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; OR (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT FORESEEABLE, EVEN IF STOVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE.
10.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND RULES, STOVE'S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY MERCHANT TO STOVE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
11.1. STOVE Indemnification. STOVE will indemnify, defend and hold harmless Merchant and its directors, officers, employees, affiliates and agents from and against any and all third-party claims brought against Merchant by a third party to the extent resulting from or arising out of any allegation that the use of the Services as contemplated hereunder infringes the copyright or misappropriates the trade secret rights of such third party.
11.2. Merchant Indemnification. Merchant will indemnify, defend and hold harmless STOVE and its directors, officers, employees, affiliates and agents from and against any and all third-party proceedings, claims, losses, damages, demands, liabilities, fines, fees, costs, expenses or other amounts whatsoever imposed or assessed by the Payment Networks, regulatory authorities or other third parties to the extent resulting from or arising out of (a) Merchant's use of the Services, (b) STOVE's processing activities on behalf of Merchant, (c) Merchant's breach or nonperformance of any provision of this Agreement; (d) any Tax assessment or (e) any claims against STOVE related to the use by STOVE of any Merchant Data or any of Merchant's intellectual property.
12.1. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose Confidential Information relating to the Disclosing Party's business under this Agreement. For the avoidance of doubt, STOVE's Confidential Information includes the Services, Hardware, and any information relating thereto. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information.
12.2. Notwithstanding any provision of this Agreement to the contrary, either party may disclose the other party's Confidential Information, in whole or in part (i) to its Representatives who have a need to know; (ii) as required by law; or (iii) otherwise in accordance with STOVE's Privacy Statement.
13.1. The parties acknowledge that the Personal Information of Merchant, Merchant's Employees and Customers will be Processed as part of the Services. For the purposes of any Personal Information Processed under this Agreement, the terms of the Merchant Data Processing Addendum found at https://www.stovepos.com/privacy/merchantdpa shall apply.
13.2. For certain Services, STOVE will act as a Processor and will Process Personal Information on your behalf.
13.3. Each Party is responsible for implementing and maintaining appropriate technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with its respective obligations under the Agreement and the provision of the Services.
13.4. If either Party discovers or becomes aware of a Security Incident, the discovering Party shall promptly notify the other Party and take any additional steps that are reasonably necessary to remedy any non-compliance with this Agreement.
13.5. As part of this Agreement, STOVE shall, with reasonable notice, have the right to perform an audit of Merchant's facilities, systems and personnel to verify Merchant's compliance with this Section.
14.1. Agreement to Arbitrate. Except where prohibited by Applicable Law and Rules, Merchant agrees that any and all disputes or claims that have arisen or may arise between Merchant and STOVE, whether arising out of or relating to this Agreement or in connection with Merchant's use of the Services or our websites, shall be resolved exclusively through confidential, final and binding arbitration. Merchant agrees that, by agreeing to this Agreement, Merchant and STOVE are each waiving the right to a trial by jury or to participate in a class action.
14.2. Prohibition of Class and Representative Actions. Except where prohibited by Applicable Law and Rules, Merchant and STOVE agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding.
14.3. Pre-Arbitration Dispute Resolution. STOVE is always interested in resolving disputes amicably and efficiently. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute ("Notice"). The Notice to STOVE should be sent to STOVE at 500 La Terraza Blvd., Escondido, CA 92025, Attn: General Counsel.
14.4. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Commercial Arbitration Rules.
14.5. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. STOVE is entitled to collect attorneys fees from Merchant if STOVE is the prevailing party, if Merchant is the prevailing party then attorneys fees is not to be paid by STOVE.
14.6. Confidentiality. Except as may be required by law, all aspects of the arbitration proceeding will be strictly confidential for the benefit of all parties.
14.7. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable.
Except as provided in the Arbitration Agreement, STOVE may give notice applicable to STOVE's general customer base by means of a general notice on the Services portal, and notices specific to Merchant by e-mail to Merchant's address on record in Merchant's STOVE Account. Notices to STOVE must be sent via registered mail, postage prepaid, return receipt requested, to STOVE, Inc., 500 La Terraza Blvd., Suite 150, Escondido, CA 92025, Attn: General Counsel.
Neither party shall be in default of its obligations under this Agreement to the extent its performance is (a) delayed or prevented by any act of God, earthquake, flood, national disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, pandemic or any other similar event beyond such party's control, and (b) could not have been prevented by the non-performing party's reasonable precautions or commercially accepted processes.
17.1. Governing Law and Jurisdiction. Any action, claim, or dispute related to this Agreement will be governed by the laws of the State of California, excluding its conflicts or choice of law provisions, and controlling U.S. federal law. Except as set forth in Section 14, the parties agree that the federal or state courts in the city of San Diego, California shall have exclusive jurisdiction to hear and determine any dispute between them.
17.2. No Waiver. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
17.3. Entire Agreement. This Agreement and all Order(s), together with all exhibits, attachments, and addenda incorporated by reference herein and therein, represent the parties' entire understanding relating to the Services and the subject matter hereof and thereof.
17.4. Assignment. Merchant may not assign this Agreement without the prior written approval of STOVE. STOVE may at its sole discretion assign this agreement to any change in ownership, venue, location or brand.
17.5. Electronic Signature. Signatures transmitted and received electronically are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature.
All capitalized terms not defined herein shall have the meaning ascribed to them in the Merchant Agreement.
