Lightrail Client Service Agreement
Welcome, and thank you for your interest in Lightrail Technologies, Corp., a Delaware corporation (“Lightrail”) and Lightrail’s Web site at www.lightrail.com (the “Site”), as well as all related web sites, networks, embeddable widgets, downloadable software, mobile applications, and other services provided by us and on which a link to this Agreement of Use is displayed (collectively, together with the Site, the “Lightrail Service”). The Lightrail Service provides a stored-value API and web application for account credit, promotions, points and codes called Lightrail, which enables Client to recognize Lightrail-generated Client Digital Codes in Client’s check-out process. These Terms of Lightrail Service are a legally binding contract between you (“Client”) and Lightrail regarding Client’s use of the Lightrail Service. Lightrail agrees to act as Client’s vendor to provide certain processing, distribution, and sales and transaction reporting services in accordance with the terms and conditions set forth in this Agreement.
Certain capitalized terms used in this Agreement shall have the meanings set forth as follows:
1.1 “Activate(d)” means, with respect to a Client Digital Code, capable of being used to conduct purchase transactions in Client’s check-out process.
1.2 “Affiliate” means, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly Controls, is Controlled with or by or is under common Control with a party.
1.3 “AML Program”** has the meaning set forth in Section 5.1.
1.4 “Applicable Law" means (i) the Network Rules, (ii) any applicable rule or requirement of NACHA, and (iii) any and all foreign, federal, state or local laws, treaties, rules, regulations, regulatory guidance, directives, policies, orders or determinations of (or agreements with) a Regulatory Authority and mandatory written direction from (or agreements with) any Regulatory Authority, including, without limitation, the Bank Secrecy Act and the regulations promulgated thereunder, including, without limitation, 31 C.F.R. 1022.210, 31 C.F.R. 1022.320, 31 C.F.R. 1022.420, and any successor provisions, any and all sanctions or regulations enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, and federal or state statutes or regulations relating to stored value cards, money transmission, unclaimed property or data security, and all federal or state statutes or regulations relating to stored value cards, money transmission, unclaimed property or data security, including, without limitation, Title IV of the Credit Card Accountability Responsibility and Disclosure Act of 2009, Pub. L. No. 111-24, 123 Stat. 1734, as amended by Pub. L. No. 111-209, and the regulations promulgated thereunder, including, without limitation, 12 C.F.R. 205.20, or any successor provisions, that are applicable to the Cards or Program, or otherwise applicable to any of the Parties, as the same may be amended and in effect from time to time during the Term.
1.5 “Card” means a unique record and balance of stored-value, whether a Client-branded digital prepaid gift card, promotional code or credit, refund credit, points, or other form of account credit which is issued by Client as a product of Client.
1.6 “Client Digital Code” means Lightrail-generated codes, personal identification number(s), or other similar mechanism delivered to a Recipient electronically as part of a Card.
1.7 “Client Technologies” means (i) the processes, methods, machines, manufactures, technology, software or other technologies and all other materials owned or licensed by Client and used or otherwise provided solely by Client pursuant to this Agreement; (ii) all improvements, modifications, or upgrades to any of the foregoing; (iii) any such intellectual property developed, invented, patented, or registered by Client prior to or during the Term of this Agreement.
1.8 “Control” means the possession, direct or indirect, of the power to vote fifty percent (50%) or more of the securities that have ordinary voting power for the election of directors of any entity, or to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or by contract or otherwise.
1.9 “FinCEN” means the U.S. Department of Treasury’s Financial Crimes Enforcement Network.
1.10 “Lightrail Technologies” means (i) the processes, methods, machines, manufactures, technology, software or other technologies and all other materials owned or licensed by Lightrail and used or otherwise provided by Lightrail pursuant to this Agreement; (ii) all improvements, modifications, or upgrades to any of the foregoing; (iii) any such intellectual property developed, invented, patented, or registered by Lightrail prior to or during the Term of this Agreement.
1.11 “Lightrail Site” means a stored-value platform which is hosted and maintained by Lightrail that allows for the creation and management of trackable, digital, Client-branded Cards.
1.12 “Marks” means the trademarks, service marks, trade names and logos of a Party used on or in connection with the Cards.
1.13 “NACHA” means NACHA – The Electronic Payments Association.
1.14 “Network” means the internet protocol, Visa U.S.A., Inc., MasterCard International, Inc., Discover Network, Inc., American Express Travel Related Services Company, Inc., or any other payment network which is utilized by Client to issue the Cards or otherwise utilized by any Party hereto for the purposes of fulfilling such Party’s obligations hereunder.
1.15 “Network Rules” means the by-laws and operating rules of any Network.
1.16 “Payment Device” means a debit or credit card supported by Lightrail. Current supported Payment Devices are Visa, MasterCard, American Express, and Discover, and are subject to change upon written notice from Lightrail.
1.17 “Person” means any individual, corporation, company, group, partnership or other entity.
1.18 “Program” means the marketing, promotion, distribution, and servicing of Cards pursuant to this Agreement and any agreement to which Lightrail and Client are parties.
1.19 “Recipient” means a Person who receives one or more Cards created using the Lightrail Site.
1.20 “Regulatory Authority” means any card association operating a payment network which is utilized by either Party or its Affiliate for the purposes of fulfilling either Party’s obligations hereunder (including, but not limited to Visa), NACHA, any state banking department, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Federal Reserve Board, FinCEN, the Consumer Financial Protection Bureau, the Federal Trade Commission, and any other governmental agency, including any foreign governmental agency, having jurisdiction over the Cards, Program, any of the services to be provided hereunder, Lightrail, Client or any of their respective Affiliates.
1.21 “Transaction Data” means the data necessary to Activate a Card as mutually agreed upon by the Parties.
2. The Lightrail Service.
(a) As part of the Lightrail Service, Lightrail shall, as further described herein, be responsible for (i) hosting and maintaining the Lightrail Site, (ii) enabling the creation, use, management and tracking of Cards; (iii) processing Transaction Data related to Cards; and (iv) generating, tracking, and managing Client Digital Codes.
(b) As between Client and Lightrail, Client shall be responsible for all obligations relating to the Cards and all other aspects of the Program not otherwise expressly assumed by Lightrail hereunder, and shall bear all costs and expenses associated therewith.
2.2 Lightrail Site Requirements.
(a) Browser Compatibility. The Lightrail Site will support the following internet browsers: Firefox (which will automatically update), Chrome (which will automatically update), Internet Explorer 10 and all later versions of Internet Explorer, and Safari 8, regardless of whether such browsers are accessed from a computer or mobile device.
(b) Denomination of Cards. Lightrail will enable Client to select the denomination of the Cards when creating Cards on the Lightrail Site. The Lightrail Site will accommodate variable Card denominations from $0-$99,999.99 in the following Currencies: USD, CDN, GBP, EUR, XXX (points), and AUD.
(c) Limitations. All Cards are for domestic use only. Lightrail may at any time enforce limitations on Cards and Program based on requirements from Regulatory Authorities. In the USA, prepaid value may not exceed $1999. Cards may not be transferred amongst users or across currencies. Client is responsible for Program and Card compliance in accordance with the laws of the jurisdiction in which the Client operates.
2.3 Security of Client Digital Codes; Losses Relating to Compromised Client Digital Codes.
(a) Security of Client Digital Codes. Lightrail shall store any and all Client Digital Codes in its possession in a secure environment that may be accessed only by individuals who are authorized by Lightrail to have access in order to fulfill their employment responsibilities. Lightrail shall report any data breach, loss or other compromise of Client Digital Codes in its possession as soon as reasonably practicable, but in no event later than twenty-four (24) hours after Lightrail learns of any such breach, loss or compromise of Client Digital Codes.
(b) Losses Relating to Compromised Client Digital Codes. The Parties acknowledge and agree that as between Lightrail and Client, Client shall be responsible for any losses relating to or arising from the loss, theft, or compromise of any Client Digital Code at any point following Activation of a Card and subsequent delivery of the Client Digital Code to a Recipient in accordance with the Card Terms and Conditions.
2.4 Card Activation. Lightrail will transmit the resulting Transaction Data from a Card Activation in real time to Client, following which Client shall Activate the Card. As between the Parties, Client shall be liable for obtaining, recording, reporting and maintaining in confidence any information relating to the Cards or transactions involving the Cards, including any information as may be required to comply with Applicable Law. Client shall retain such information and related records in accordance with Applicable Law.
2.5 Books and Records. Each Party shall maintain complete and accurate books of account and records, in accordance with generally accepted accounting principles in the United States, of all financial transactions arising in connection with its obligations pursuant to this Agreement for a period of not less than that legally required for such records from the date last recorded or created, but in no event less than three (3) years following the end of the Term. The Parties further agree to work together in good faith to promptly reconcile any accounting discrepancies. No more than once during each fiscal quarter, each Party may, at its own expense, and upon reasonable prior notice, have an internal or third party auditor, at the requesting Party's expense, inspect the books and records of any other Party relating to services performed herein by that Party, and during the Term, each Party shall furnish to the third party auditor of any other Party all such information concerning transactions and services provided by it pursuant to this Agreement as such other Party may reasonably request. Client shall exercise commercially reasonable efforts to provide Lightrail with reasonable access to any information and documents that Lightrail may require to comply with Applicable Law, including, but not limited to, information and documents concerning Program revenues or transactions and agreements affecting the management and administration of the Program. Any Confidential Information provided by a Party to another Party pursuant to this provision shall be subject to the provisions of Section 10 hereof.
2.6 Fraud Recovery. Lightrail shall be liable for any fraud losses resulting from (i) the fraud, gross negligence or willful misconduct of its or its Affiliates employees, authorized agents, authorized contractors, or authorized representatives, or (ii) inaccurate Transaction Data transmissions caused by Lightrail to Client, except to the extent related to Client’s breach of this Agreement or the fraud, willful misconduct or negligence of Client. Client shall be responsible for all other fraud losses.
2.7 Unauthorized and Erroneous Transactions. Lightrail shall make commercially reasonable efforts to promptly notify Client via (a) e-mail or facsimile, and (b) telephone, with a copy by mail with information of which it has actual knowledge about any unauthorized Activation of any Card or about any counterfeit or fraudulent Card sales. Lightrail will promptly investigate and respond to such information in accordance with its obligations under this Agreement and Applicable Law, including, if appropriate, exerting commercially reasonable efforts to cancel the related Card.
2.8 Customer Service and Recipient Refunds. Upon the Activation of a Card, Client shall, as between the Parties, be fully responsible for, and shall bear all costs and expenses associated with, all customer service provided to Recipients related to the Card and processing all refunds and credits, including, without limitation, services to Recipients related to lost or stolen Cards, Card transaction inquiries, and the resolution of any Recipient or potential Recipient disputes, and shall cooperate with Lightrail in servicing all Lightrail inquiries and complaints arising in connection with Cards or other aspects of the Program and Applicable Law. Client shall resolve, in accordance with Applicable Law, all alleged errors or unauthorized transactions with respect to any Card.
3. Use of Lightrail Service
3.1 Use of the Lightrail Services. Subject to the terms and conditions of this Agreement, Lightrail grants to Client a limited, worldwide, non-exclusive, non-transferable right during the term of this Agreement to use the Lightrail Service.
3.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Lightrail grants to Client a limited, worldwide, non-exclusive, non-transferable license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Lightrail Service in accordance with this Agreement.
3.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Client will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Lightrail Service; (b) rent, lease, or otherwise permit third parties to use the Lightrail Service or Documentation; (c) use the Lightrail Service to provide services to third parties (e.g., as a service bureau); nor (d) circumvent or disable any security or other technological features or measures of the Lightrail Service.
3.4 Compliance with Laws. Client will use the Lightrail Service and Documentation in compliance with all applicable laws and regulations.
3.5 Client Content. Certain features of the Lightrail Service may permit Client to upload content, including messages, photos, video, images, folders, data, text, and other types of works (collectively, “Client Content”) and to publish Client Content through the Lightrail Service. Client retains copyright and any other proprietary rights that Client may hold in the Client Content. Client grants Lightrail a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute the Client Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any use of the Client Content by Lightrail will be without any compensation paid to Client. Client is solely responsible for Client Content and the consequences of posting or publishing Client Content. By posting or publishing Client Content, Client represents and warrants that (a) Client is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use and to authorize Lightrail to use and distribute the Client Content as necessary to exercise the licenses granted by Client in this Section 3.6 and in the manner contemplated by Lightrail and this Agreement; and (b) the Client Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party.
3.6 Client Content Disclaimer. Lightrail is under no obligation to edit or control Client Content that Client or other users post or publish, and will not be in any way responsible or liable for Client Content. Lightrail may, however, at any time and without prior notice, screen, remove, edit, or block any Client Content that in Lightrail’s sole judgment violates this Agreement or is otherwise objectionable. Client understands that when using the Lightrail Service Client may be exposed to Client Content from a variety of sources and acknowledge that Client Content may be inaccurate, offensive, indecent or objectionable. Client agrees to waive, and hereby does waive, any legal or equitable rights or remedies Client have or may have against Lightrail with respect to Client Content. Lightrail expressly disclaims any and all liability in connection with Client Content. If notified by a user or content owner that Client Content allegedly does not conform to this Agreement, Lightrail may investigate the allegation and determine in its sole discretion whether to remove the Client Content, which Lightrail reserves the right to do at any time and without notice. For clarity, Lightrail does not permit copyright-infringing activities on the Lightrail Service.
3.7 Protection against Unauthorized Use. Client will use reasonable efforts to prevent any unauthorized use of the Lightrail Service and Documentation and immediately notify Lightrail in writing of any unauthorized use that comes to Client’s attention. If there is unauthorized use by anyone who obtained access to the Lightrail Service directly or indirectly through Client, Client will take all steps reasonably necessary to terminate the unauthorized use. Client will cooperate and assist with any actions taken by Lightrail to prevent or terminate unauthorized use of the Lightrail Service or Documentation.
3.8 Prohibited Conduct. BY USING THE LIGHTRAIL SERVICES, SUBSCRIBER AGREES NOT TO:
(a) use the Lightrail Service for any illegal purpose, or in violation of any local, state, national, or international law;
(b) violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
(c) post, upload, or distribute any Client Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
(d) interfere with security-related features of the Lightrail Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Lightrail Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
(e) interfere with the operation of the Lightrail Service or any user’s enjoyment of the Lightrail Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Lightrail Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Lightrail Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
(f) perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Lightrail Service accounts of others without permission, or falsifying Client’s age or date of birth;
(g) sell or otherwise transfer the access granted herein or any Materials (as defined in Section 12 below) or any right or ability to view, access, or use any Materials; or
(h) attempt to do any of the foregoing in this Section 3, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section #.
3.9 Third-Party Lightrail Service and Linked Websites. Lightrail may provide tools through the Lightrail Service that enable Client to export information, including Client Content, to third party services, including through features that allow Client to link the Client Account with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, Client agrees that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of Client’s exported information. The Lightrail Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
3.10 Ownership; Proprietary Rights. The Lightrail Service are owned and operated by Lightrail. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Lightrail Service (the “Materials”) provided by Lightrail are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Lightrail Service are the property of Lightrail or its third-party licensors. Except as expressly authorized by Lightrail, Client may not make use of the Materials. Lightrail reserves all rights to the Materials not granted expressly in this Agreement.
3.11 Reservation of Rights. Lightrail grants to Client a limited right to use the Lightrail Service and Documentation under this Agreement. Lightrail reserves to itself all rights to the Lightrail Service and Documentation not expressly granted to Client in accordance with this Agreement.
4. Fees and Payment
4.1 The Parties agree that, as compensation for the Lightrail Service, Lightrail shall be entitled to service fees, including but not limited to account setup fees, data-import fees, monthly web application and API fees, Contact Record fees, and Card Action fees (collectively referred to as ‘Lightrail Service Fees’). A Card Action is one of the following: (i) the creation of a new Card; (ii) a transaction on a Card (including debit/payment or a credit/reload); (iii) the addition of promotional value to a Card; or, (iv) the cancelation of a Card. Pricing for Lightrail Service fees can be found at lightrail.com/pricing.
4.2 Lightrail Service Fees will be calculated and charged monthly. Lightrail will then produce an invoice which sets forth the results of such calculations and the Lightrail Service Fees due to Lightrail, and transmit the Invoice to Client via email, message through the Lightrail web application or other means mutually agreed upon by the Parties.
4.3 The Client will pay Invoices via ACH, wire, or another mutually-agreed upon method of payment no later than thirty (30) days immediately following Client’s receipt of an Invoice.
5. Digital Millennium Copyright Act
5.1 DMCA Notification. Lightrail complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. 512, as amended). If Subscriber has any complaints with respect to material posted on the Lightrail Services, Subscriber may contact Lightrail’s Designated Agent at the following address: Lightrail Technologies, Corp. 1209 Orange Street, Wilmington, Delaware, 19801. E-mail: email@example.com. Any notice alleging that materials hosted by or distributed through the Lightrail Services infringe intellectual property rights must include the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the Lightrail Services;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the Lightrail Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
6. Representations, Warranties and Covenants.
6.1 Prepaid Access. Lightrail and Client acknowledge and agree that the Program does not constitute regulated “prepaid access” (as this term is defined under 31 C.F.R. 1010.100(ff) or any successor provision) under 31 C.F.R. Chapter X. However, to the extent the Program is deemed to provide prepaid access, Client hereby represents, warrants and covenants to Lightrail that Client maintains principal oversight and control of the Program as defined in 31 C.F.R. § 1010.100(ff)(4)(ii). Client shall be solely responsible for its maintenance of all necessary licenses, registrations, and regulatory obligations relevant to its role in operating the Program.
6.2 Client Representations, Warranties, and Covenants. Client hereby represents, warrants, and covenants to Lightrail that:
(a) it is duly qualified and is properly licensed to do business, and is in good standing (i) in each jurisdiction in which the conduct of its business requires it to so qualify or be licensed, and (ii) with each Regulatory Authority having jurisdiction over it;
(b) prior to Lightrail delivering a Client Digital Code upon Activation in any jurisdiction, and at all times during the Term thereafter, Client shall possess and maintain all necessary licenses, permits, approvals, and registrations from all applicable state and federal regulatory and governmental authorities which are required to (i) issue the Cards and receive and transmit Recipient funds in such jurisdiction for purposes of Client’s operation of the Program, and (ii) extend agency to Lightrail, as applicable, and otherwise authorize it to deliver Client Digital Codes upon Card Activation in such jurisdiction as Client’s distribution partner;
(c) the execution and delivery of this Agreement by Client and the performance of its obligations hereunder require no consent, approval, order or authorization of, or registration, declaration or filing with, or other action by, any governmental agency or authority, except for such consents, approvals, orders, authorizations, registrations, declarations or filings which Client has made or obtained for purposes of operating the Program;
(d) it is in material compliance, and will at all times materially comply, with Applicable Law relating to the performance of its obligations under this Agreement, including, without limitation, those in connection with the Cards and Client’s operation of the Program;
(e) the performance of its obligations hereunder do not and will not violate any other agreement to which it is a party;
(f) it is, and shall at all times remain, the sole owner of, or a licensee with rights to sublicense, the Client Marks;
(g) neither the Client Technologies nor Marks infringe, or shall infringe, on any United States or other jurisdiction’s patent rights, copyrights, trademarks, trade dress, service marks, trade secret rights, or other proprietary rights of any third party;
(h) the Client Technologies are proprietary to Client or are in the public domain or are used by Client under a license and Client has the right to sublicense such Client Technologies;
(i) all Client Technologies shall comply with Applicable Law; and
(j) as of the Effective Date of this Agreement, there are no pending or, to the knowledge of Client, threatened, Claims or litigation against Client that would adversely impact Client’s ability to perform its obligations under this Agreement, including, but not limited to, any Claims or litigation contesting Client’s ownership or right to use any of the Client Technologies or its patents, copyrights, trademarks, service marks, or trade secrets in connection with the Client Technologies.
6.3 Lightrail Representations, Warranties, and Covenants. Lightrail hereby represents, warrants, and covenants to Client that:
(a) it is duly incorporated and validly existing and in good standing under the laws of the State of Delaware;
(b) it is duly qualified and is properly licensed to do business, and is in good standing (i) in each jurisdiction in which the conduct of its business requires it to so qualify or be licensed, and (ii) with each Regulatory Authority having jurisdiction over it;
(c) except for those authorizations required to be provided by Client hereunder, it has and shall maintain all necessary licenses, permits, approvals, and registrations from all applicable state and federal regulatory and governmental authorities required to perform its obligations hereunder;
(d) the execution and delivery of this Agreement by Lightrail and the performance of its obligations hereunder require no consent, approval, order or authorization of, or registration, declaration or filing with, or other action by, any governmental agency or authority, except for such consents, approvals, orders, authorizations, registrations, declarations or filings which Lightrail has made or obtained;
(e) it is in material compliance, and will at all times materially comply, with Applicable Law relating to the performance of its obligations under this Agreement in connection with the Cards;
(f) the performance of its obligations hereunder do not and will not violate any other agreement to which it is a party;
(g) it is the sole owner of or a licensee with rights to sublicense its Marks, and its Marks do not infringe on the intellectual property rights of any person or entity;
(h) the Lightrail Technologies do not infringe on any United States or other jurisdiction’s patent rights, copyrights, trademarks, trade dress, service marks, trade secret rights, or other proprietary rights of any third party;
(i) the Lightrail Technologies are proprietary to Lightrail or are in the public domain or are used by Lightrail under a license and Lightrail has the right to sublicense the Lightrail Technologies;
(j) all Lightrail Technologies shall comply with Applicable Law; and
(k) as of the Effective Date of this Agreement, there are no pending or, to the knowledge of Lightrail, threatened, Claims or litigation against Lightrail that would adversely impact Lightrail’s ability to perform its obligations under this Agreement, including, but not limited to, any Claims or litigation contesting Lightrail’s ownership or right to use any of the Lightrail Technologies or its patents, copyrights, trademarks, service marks, or trade secrets in connection with the Lightrail Technologies.
7. Legal Compliance.
7.1 Compliance with Applicable Law.
(a) Generally. Each Party shall comply with Applicable Law relating to the performance of its respective obligations hereunder. In the event that any Regulatory Authority requests or demands that Client or Lightrail cease or suspend any activities in connection with the Cards, Lightrail shall have the right to immediately stop all such activities in such jurisdiction.
(b) Client Compliance Obligations. As between the Parties, Client shall ensure that the Program, Cards, and all related materials comply with Applicable Law.
7.2 Security of Recipient Data.
(a) Client agrees that, as between Client and Lightrail, Client shall bear sole responsibility for protecting the privacy of Recipient Data in accordance with Applicable Law, including, without limitation, the Gramm-Leach-Bliley Financial Modernization Act (“GLBA”) and related privacy laws and regulations. Client acknowledges and agrees that Lightrail shall not receive any Recipient Data in the performance of its obligations hereunder. Lightrail shall (i) at all times during the Term comply with the Payment Card Industry Data Security Standard (“PCI DSS”) in the performance of its obligations hereunder and (ii) promptly provide notice to Client in the event that any third party audit concludes that such Party is not acting in compliance with the PCI DSS in the performance of its obligations hereunder. Client shall (i) at all times comply with PCI DSS in the performance of its obligations hereunder; (ii) upon request, deliver to Lightrail evidence of such compliance; and (iii) promptly provide notice to Lightrail in the event that any third party audit concludes that Client is not acting in compliance with the PCI DSS in the performance of its obligations hereunder.
(b) Subject to any obligations placed upon Client or Lightrail by a law enforcement agency, such Party agrees to fully disclose to the other Party any actual breach in security which results in unauthorized intrusions into such Party's computer and other information systems that materially affects the other Party or the Recipients or otherwise involves the unauthorized disclosure, access to, acquisition of, or other loss or use of Recipient Data. As soon as such Party becomes aware that it has such a security breach it shall notify the other Party in writing and provide: (i) a description of the breach or loss, including the data it occurred; (ii) the number of individuals or accounts affected; (iii) the information accessed, acquired, lost, or misused; (iv) whether the breach or loss was computerized in nature or a paper loss; (v) whether such information was encrypted or unencrypted; (vi) whether encryption keys or passwords may have been compromised, and (vii) a description of the steps taken to investigate the incident, secure systems or recover lost information, and prevent the recurrence of further security breaches or losses of the same type. In addition, in the event of an actual breach in security of Client’s or Lightrail’s computer or other information systems, such Party agrees to (i) permit a mutually agreed upon independent qualified third party auditor to perform an investigation (including the installation of monitoring or diagnostic software or equipment) to locate the source and scope of the breach and provide the other Party with any material information related to such Party that such independent auditor discovers with respect to the breach, and (ii) be responsible for all costs, expenses, fines, fees, penalties and other liability directly arising out of or related to any such actual breach which the other Party may incur or otherwise be responsible for.
8. Intellectual Property.
8.1 Client Technologies and Client Marks. Client hereby grants to Lightrail during the Term a non-exclusive, royalty-free, non-assignable license to use (but not the right to sublicense) the Client Technologies and Client Marks (and the copyrights that exist in such Marks, if any), as well as additional Client marketing materials such as customer use cases and testimonials (collectively, “Client Marketing Materials”), in the United States solely to the extent that (i) Client authorizes solely in connection with the Program and (ii) such use is necessary for Lightrail to perform its obligations hereunder. The Client Marketing Materials shall be used only in the forms and format expressly approved in advance by Client, which approval shall not be unreasonably withheld, condition or delayed. Title to and ownership of the Client Marks and the Client Technologies shall remain with Client and all use of the Client Marketing Materials shall inure to the sole benefit of Client. Other than expressly provided herein with respect to the Client Marks or Client Technologies, Lightrail shall not obtain any right, title or other interest in the Client Marks or Client Technologies by virtue of this Agreement. Upon termination of this Agreement, all license rights conveyed by Client to Lightrail shall cease, and all such rights shall revert to Client. Client shall ensure that the Client Technologies are free from material defects in design, material and workmanship under normal use and operating conditions during the Term of this Agreement.
8.2 Lightrail Technologies and Lightrail Marks. Solely in connection with and in furtherance of its obligations under this Agreement, Lightrail hereby grants to Client during the Term a non-exclusive, royalty-free, non-assignable license to use (but not the right to sublicense) the Lightrail Technologies and Lightrail Marks (and the copyrights that exist in such Marks, if any) in the United States solely to the extent that (i) Lightrail authorizes in connection with the Program and (ii) such use is necessary for Client to perform its obligations hereunder. Lightrail Marks shall be used only in the forms and format expressly approved in advance by Lightrail, which approval shall not be unreasonably withheld, condition or delayed. Title to and ownership of Lightrail Marks and the Lightrail Technologies shall remain with Lightrail and/or one of its Affiliates and all use of Lightrail Marks shall inure to the sole benefit of Lightrail and/or one of its Affiliates. Other than expressly provided herein, Client shall not obtain any right, title or other interest in Lightrail Marks or the Lightrail Technologies by virtue of this Agreement. Upon termination of this Agreement, all license rights conveyed by Lightrail to Client shall cease, and all such rights shall revert to Lightrail and/or one of its Affiliates. Lightrail shall ensure that the Lightrail Technologies are free from material defects in design, material and workmanship under normal use and operating conditions during the Term of this Agreement.
8.3 Improvements. Any improvement(s), modifications, or upgrades to the Client Technologies or Client Marks made or discovered during the Term shall belong exclusively to Client or one of its Affiliates. Any improvement(s), modifications, or upgrades to the Lightrail Technologies or Lightrail Marks made or discovered during the Term shall belong exclusively to Lightrail or one of its Affiliates. To the extent that any Party contributes, in whole or in part, to any improvement(s) to any other Party’s Technologies or Marks such Party hereby assigns to the other Party all right, title and interest in and to such improvement(s). Further, such Party agrees that (a) it will not seek, and that it will require its employees, agents and representatives (including third party contractors) not to seek patent, copyright, trademark, registered design, or other protection for any rights in and to the improvement(s), and (b) it will do and will require its employees, agents and representatives (including third party contractors) to do, at the other Party’s expense, all things and execute all documents as the other Party may reasonably require to vest in the other Party or its nominees any protection for the improvement(s) that the other Party deems appropriate.
9. Changes to the Terms.
Lightrail reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. Please check this Agreement periodically for changes. In the event that a change to this Agreement materially modifies Subscriber’s rights or obligations, Lightrail will make reasonable efforts to notify Subscriber of such change. Lightrail may provide notice through a pop-up or banner within the Lightrail Services, by sending an email to any address Subscriber may have used to register for an account, or through other mechanisms. Additionally, if the changed Agreement materially modifies Subscriber’s rights or obligations, Lightrail may require Subscriber to provide consent by accepting the changed terms and conditions. If we require Subscriber’s acceptance of the changed terms and conditions, changes are effective only after Subscriber’s acceptance. If Subscriber does not accept the changed terms and conditions, we may terminate Subscriber’s access to and use of the Lightrail Services. All other changes are effective upon publication of the changed terms and conditions. Disputes arising under this Agreement will be resolved in accordance with the terms and conditions in effect that the time the dispute arose.
10. Term and Termination.
The term of this Agreement shall begin on the Effective Date and continue for a period of one (1) year, unless otherwise terminated for cause (the “Initial Term”). This Agreement shall automatically renew for additional period of 1 year (each, a “Renewal Term”) (the Initial Term, collectively with all Renewal Terms, the “Term”), unless either Client or Lightrail provides the other Parties with written notice of its intention to not renew the Agreement not less than thirty (30) days prior to the expiration of the Initial Term or Renewal Term then in effect.
11.1 Termination of Agreement For Cause. In addition to any termination rights provided elsewhere in this Agreement, any Party shall have the right to terminate the Agreement upon occurrence of one or more of the following events:
(a) Failure by any other Party to observe or perform, in any material respect, that Party’s obligations to any other Party hereunder, so long as the failure is not due to the actions or failure to act of the terminating Party, but only if the failure continues for a period of: (i) thirty (30) Business Days after the non–performing Party received written notice from the terminating Party specifying the failure in the case of a failure not involving the payment of money, or (ii) ten (10) Business Days after the non–performing Party receives written notice for the terminating Party specifying the failure in the case of a failure to pay any amount then due hereunder;
(b) In the event any representation, warranty statement or certificate furnished to it by any other Party in connection with or arising out of the Agreement is materially adverse to the terminating party and intentionally untrue as of the date made or delivered;
(c) Any other Party: (i) voluntarily commences any proceeding or filing any petition seeking relief under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, liquidation or similar law; (ii) applies for or consents to the appointment of a receiver, trustee, custodian, sequestrator or similar official for such Party or for a substantial part of its property or assets, (iii) makes a general assignment for the benefit of creditors, or (iv) takes corporate action for the purpose of effecting any of the foregoing;
(d) The commencement of an involuntary proceeding or the filing of an involuntary proceeding or the filing of an involuntary petition in a court or competent jurisdiction seeking: (i) relief in respect for any other Party, or of a substantial part of its property or assets under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or similar office for any other Party for a substantial part of its property or assets, or (iii) the winding up or liquidation, of any other Party, if such proceeding or petition shall continue un–dismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall continue unstayed and in effect for sixty (60) days;
(e) Upon any change to or enactment of any Applicable Law, or published change in the interpretation thereof by any Regulatory Authority, which would have a material adverse effect upon: (i) the Program; (ii) such Party’s ability to perform its obligations hereunder; or (iii) such Party’s expected risks or benefits under this Agreement; provided that the Parties, after good faith discussions, cannot find a mutually agreeable solution within a reasonable amount of time.
(f) Violation of Applicable Law relating to the performance of this Agreement rendering any of the Parties unable to substantially perform this Agreement, provided that the Parties cannot find a legally workable solution to avoid violating Applicable Law within a reasonable amount of time;
(g) Upon direction from any Regulatory Authority for any Party to cease or materially limit performance of such Party’s obligations under this Agreement.
11.2 Additional Termination Right of Lightrail. Without limiting the termination right set forth in Section 6.1(e), Lightrail shall have the right to terminate this Agreement immediately upon written notice to Client in the event that (i) Lightrail is deemed, or (ii) Lightrail reasonably determines that Lightrail or may be deemed, a “seller of prepaid access” or “provider of prepaid access” (as each term is defined under 31 C.F.R. 1010.100(ff) or any successor provision) as a result of their respective activities related to any Card.
11.3 Rights and Obligations upon Termination. The Parties’ rights to terminate this Agreement shall be in addition to, and not in lieu of, any other remedies they may have by virtue of (a) a breach or default with respect to this Agreement or (b) any other event which permits a termination. Furthermore, the termination or expiration of this Agreement shall not relieve the Parties of any obligations due at or before the time of such termination or expiration or prejudice any claim of either Party. Upon termination of this Agreement, Lightrail shall retain the right to continue offering a platform for customers of Lightrail to purchase and send Client-branded Card Offers through Lightrail’s Rewards platform. Client shall exercise commercially reasonable efforts to provide Lightrail with reasonable access to any information and documents that Lightrail may require to fulfil its obligations in connection with the purchase and delivery of Client-branded Card Offers through its web-based digital gifting platform. Upon termination of this Agreement, each Party shall promptly destroy or return to the disclosing Party in a safe and secure manner as reasonably requested, at its own expense, all Confidential Information of the disclosing Party in its possession. No Party will be obligated to erase Confidential Information contained in an archived computer system backup made in accordance with such party’s security and/or disaster recovery procedures, provided that such archived copy will (i) eventually be erased or destroyed in the ordinary course of such party’s data processing procedures and (ii) will remain fully subject to the obligations of confidentiality stated herein. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, shall continue in full force and effect notwithstanding the expiration or termination of this Agreement. The expiration or termination of this Agreement shall not affect a Recipient’s usage of a Card in accordance with the Card Terms and Conditions provided that such Card was Activated prior to the termination or expiration of this Agreement.
12.1 Client Indemnification. Client agrees to indemnify, defend and hold harmless Lightrail and its respective Affiliates, sureties, officers, directors, agents, employees, parents and subsidiaries, from and against any and all liability, damages, costs, expenses, including reasonable legal fees and expenses, for any third party claim or demand, including, without limitation, any fees or penalties assessed by any Regulatory Authority (“Claim”), arising out of or related to:
(a) Client’s breach of any representation, warranty, covenant or obligation under this Agreement;
(b) gross negligence, fraud or willful misconduct on the part of Client, its officers, directors, employees, representatives or service providers, and their respective officers, directors and employees;
(c) any actions taken by Lightrail in accordance with or in good faith reliance upon information or instructions provided by Client or its agents or representatives;
(d) obligations owed to any third party by Client or any third party retained by it;
(e) any actual or alleged infringement or misappropriation of any intellectual property rights of any third party by Client;
(f) any failure of Client to remain in good standing with (i) each Regulatory Authority with jurisdiction over it, and (ii) each Network or other electronic payment network which it may be a member of or registered with from time to time;
(g) any failure of the funds underlying any Card to qualify for pass-through federal deposit insurance coverage (“FDIC Insurance”) under Applicable Law, including, without limitation, 12 C.F.R. § 330.5, to the extent such coverage is specified in the Card Terms and Conditions or any other notices, disclosures or promotional materials related to a Card; or
(h) any failure of Client to comply with the terms and conditions applicable to a Card, including, without limitation, any failure to make any funds underlying Card, or to be loaded onto a Card, available as specified in such terms and conditions, or with Applicable Law with respect to any Card, Recipient, or Recipient funds.
The defense obligation of Client attaches if the Claim alleges any of the foregoing violations, breaches, acts or omissions.
12.2 Lightrail Indemnification. Lightrail agrees to indemnify, defend and hold harmless Client, its Affiliates, sureties, officers, directors, agents, employees, parents and subsidiaries, from and against any and all Claims arising out of or related to:
(a) Lightrail’s breach of any representation, warranty, covenant or obligation under this Agreement;
(b) gross negligence, fraud or willful misconduct on the part of Lightrail, its officers, directors, employees, representatives or service providers, and their respective officers, directors and employees;
(c) any actions taken by Client in accordance with or in good faith reliance upon information or instructions provided by Lightrail or its agents or representatives;
(d) obligations owed to any third party by Lightrail or any third party retained by it; or
(e) any actual or alleged infringement or misappropriation of any intellectual property rights of any third party by Lightrail.
The defense obligation of Lightrail attaches if the Claim alleges any of the foregoing violations, breaches, acts or omissions.
12.3 Indemnification Procedures. If any Claim is asserted against any party or parties (individually or collectively, the “Indemnified Party”) by any person who is not a Party to this Agreement in respect of which the Indemnified Party may be entitled to indemnification under the provisions of Sections 7.1 or 7.2 above, written notice of such Claim shall promptly be given to any Party or Parties (individually or collectively, the “Indemnifying Party”) from whom indemnification may be sought. The Indemnifying Party shall have the right, by notifying the Indemnified Party within ten (10) Business Days of its receipt of the notice of the Claim, to assume the entire control (subject to the right of the Indemnified Party to participate at the Indemnified Party’s expense and with counsel of the Indemnified Party’s choice) of the defense, compromise or settlement of the matter, including, at the Indemnifying Party’s expense, employment of counsel of the Indemnifying Party’s choice. The Indemnified Party must provide reasonable cooperation in the defense and the failure to do so will be deemed waiver by the Indemnified Party of any and all right to indemnification by the Indemnifying Party. The Indemnifying Party shall not compromise or settle a Claim against the Indemnified Party without the Indemnified Party's prior written consent, which shall not be unreasonably withheld or delayed; provided that the Indemnifying Party may, however, effect a compromise or settlement of an action without the Indemnified Party's consent if the following conditions are met: (i) there is no admission of guilt or liability by the Indemnified Party; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; (iii) the compromise or settlement entered into between the parties to the matter shall expressly provide that the compromise or settlement entered into between the parties, and all discussions between and among the parties to the matter surrounding the compromise or settlement, shall be kept confidential; such compromise or settlement also shall stipulate that no press releases or other public statements may be made concerning such compromise or settlement without the prior written consent of the Indemnified Party; and (iv) the Indemnified Party is made aware of the proposed compromise or settlement as reasonably early as practicable, and the proposed compromise or settlement includes the claimant's or the plaintiff's unconditional release of the Indemnified Party from all liability in respect of the claim.
13. Limitation of Liability.
NO PARTY, OR THEIR RESPECTIVE SUBSIDIARIES, PARENTS OR AFFILIATES SHALL BE LIABLE TO ANY PARTY TO THIS AGREEMENT OR THEIR RESPECTIVE SUBSIDIARIES, PARENTS OR AFFILIATES, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT. THE CUMULATIVE LIABILITY OF CLIENT, WITH RESPECT TO LIGHTRAIL, OR LIGHTRAIL WITH RESPECT TO CLIENT, SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED FIFTY THOUSAND DOLLARS ($50,000). NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS CONTAINED IN THIS SECTION 8 SHALL NOT APPLY TO ANY CLAIM THAT (A) IS SUBJECT TO INDEMNIFICATION UNDER SECTION 7, OR (B) WITH RESPECT TO ANY PARTY, ARISES OUT OF SUCH PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD.
ALL SERVICES PROVIDED BY THE PARTIES HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NO PARTY, NOR THEIR RESPECTIVE AFFILIATES MAKES ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO OR ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
15. Confidential Information.
15.1 Definition. Each Party acknowledges that it may receive Confidential Information of another Party. For purposes of this Agreement, “Confidential Information” includes the terms of this Agreement, any customer information (including Recipient Data), financial data and budgetary or proprietary business information, income or sales data or projections, customer lists, business operations, policies, procedures and techniques, advertising summary or tracking reports or other reports generated in accordance with this Agreement, schematics, ideas, techniques, know how, concepts, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind or nature, plans for future development and new product concepts, contemplated products, research, development, strategies, and any information which, from the relevant circumstances, should reasonably be assumed to be confidential and proprietary. The term “Confidential Information” shall not include information which, prior to delivery, was already in the recipient Party’s possession; is or becomes generally available to the public through lawful means, other than as the result of a disclosure by the recipient Party or its representatives; becomes available to a recipient Party without confidential or proprietary restriction by a third party who rightfully possesses the information without confidential or proprietary restrictions; or the recipient Party can demonstrate that it was independently developed by such recipient Party.
15.2 Use. Except as otherwise specifically provided in this Agreement, each Party covenants and agrees that it will not, publish, communicate, divulge, or disclose to any person, firm, or corporation any Confidential Information of any other Party, except as necessary in the performance of the terms of this Agreement. Each Party covenants and agrees that it will not use any Confidential Information of any other Party except as necessary to fulfill its obligations or exercise its rights under this Agreement, and only for such purposes and only for the time that it is necessary to do so, except to the extent it is otherwise permitted under this Agreement. Each Party will take commercially reasonable security precautions, at least as great as the precautions it takes to protect its own trade secrets and as may be required by Applicable Law, with respect to the Confidential Information of each other Party which it receives and will disclose such Confidential Information only on a need to know basis and only to its subsidiary, agent or subcontractor who is obligated to treat such Confidential Information in a manner consistent with all the obligations of this Agreement. Liability for damages due to disclosure of the Confidential Information by any such third party shall be with the Party that disclosed the Confidential Information to the third party.
15.3 Required Disclosures. In the event that the recipient of Confidential Information is requested or becomes legally compelled to disclose any Confidential Information of the other Party, it is agreed that such recipient Party will provide the disclosing Party with prompt written notice of such request(s) to enable the disclosing Party, at its sole cost and expense, to seek a protective order to protect and preserve the confidential nature of the Confidential Information. In such event, each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed. Each Party shall immediately notify the other upon discovery of any loss or unauthorized disclosure of the Confidential Information of the other Party.
15.4 Return or Destruction. As requested by the furnishing Party during the Term, upon expiration or any termination of this Agreement, or completion of the obligations of the receiving Party, as applicable, the receiving Party shall (a) return or destroy, as the furnishing Party may direct, and in the manner reasonable directed by the furnishing Party, all material in any medium that contains, refers to, or relates to the furnishing Party’s Confidential Information, and (b) retain no copies except one (1) copy solely for compliance with record retention requirements under Applicable Law; provided, however, that no Party will be obligated to erase Confidential Information contained in an archived computer system backup made in accordance with such Party’s security and/or disaster recovery procedures, provided that such archived copy will (a) eventually be erased or destroyed in the ordinary course of such Party’s data processing procedures and (b) will remain fully subject to the obligations of confidentiality stated herein.
15.5 Misuse. In the event of any actual or suspected misuse, disclosure or loss of, or inability to account for, any Confidential Information of the furnishing Party, the receiving Party promptly shall: (a) promptly (and in any event within three (3) Business Days) notify the furnishing Party upon becoming aware thereof; (b) furnish to the other Parties full details of the unauthorized possession, use or knowledge, or attempt thereof, and use reasonable efforts to assist the other Party in investigating or preventing the reoccurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information; (c) take such actions as may be necessary or reasonably requested by the furnishing Party to minimize the violation; and (d) cooperate in all reasonable respects with the furnishing Party to minimize the violation and any damage resulting therefrom.
15.6 Ownership of Confidential Information. As between the Parties, each Party’s Confidential Information shall remain the property of that Party. Nothing contained in this Agreement shall be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or impliedly, any rights or license to the Confidential Information of the other Party, and any such obligation or grant shall only be as provided by other provisions of this Agreement.
15.7 Press Releases and Inquiries. All media releases, public announcements and public disclosures by a Party relating to this Agreement or the subject matter of this Agreement, including promotional or marketing material (but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing party) shall be coordinated with and approved by the other Parties prior to release. If a Party determines that disclosure is required to meet legal or regulatory requirements it shall promptly inform the other Party and coordinate such disclosure with the other Party. The disclosing Party shall limit disclosure to that which is necessary and shall give due consideration to comments the other Party and its counsel may provide regarding the nature of the disclosure.
15.8 Conflicts. To the extent that any provision in this Agreement conflicts with a provision of any other agreement between the Parties, the language most protective of Confidential Information shall take precedence as to the subject matter hereof.
16. Required Disclosures.
In the event that the recipient of Confidential Information is requested or becomes legally compelled to disclose any Confidential Information of any other Party, it is agreed that such recipient Party will provide the disclosing Party with prompt written notice of such request(s), unless such notice is prohibited by law, to enable the disclosing Party to seek a protective order to protect and preserve the confidential nature of the Confidential Information. In such event, each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed. Each Party shall immediately notify the other upon discovery of any loss or unauthorized disclosure of the Confidential Information of the disclosing Party.
Except as set forth in this Agreement, no Party may transfer or assign this Agreement or its obligations hereunder, in whole or in part, except to an Affiliate of such Party, and no attempted assignment shall be effective, without the prior written consent of the other Parties. Any purported assignment in violation of this Section 12 shall be void and of no effect. Notwithstanding the foregoing, in the event Lightrail is acquired by, merged into, or sells substantially all of its assets to, any entity, this Agreement shall continue in full force and effect, and such successor entity shall assume the rights and obligations hereunder.
18. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to that state's conflict of laws principles. Each Party agrees that service of process in any action or proceeding hereunder may be made upon such Party by certified mail, return receipt requested, to the address for notice set forth herein, as the same may be modified in accordance with the terms hereof.
19. Force Majeure.
No Party shall be liable for any failure or delay on its part to perform, and shall be excused from performing any of its non–monetary obligations hereunder if such failure, delay or non–performance results in whole or in part from any cause beyond the absolute control of the party, including without limitation, any act of God, act of war, riot, actions of terrorists, earthquake, fire, explosion, natural disaster, flooding, embargo, sabotage, government law, ordinance, rule, regulation, order or actions. Any Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Parties prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice thereof to the other Parties. This Section 14 shall in no way limit the right of any Party to this Agreement to make any claim against third parties for any damages suffered due to said cause. If any performance under this Agreement is postponed or extended for longer than sixty (60) calendar days any Party may, by written notice to the other Parties, terminate this Agreement immediately.
20. No Third Party Beneficiaries.
No Recipient nor any other third party, other than an Affiliate of any Party, is a third party beneficiary to this Agreement.
21. Independent Contractor.
The Parties are independent contractors. Except as otherwise provided herein solely for the purposes of compliance with state money transmitter statutes, nothing in this Agreement shall be construed to create a joint venture, partnership, or an agency relationship between the Parties. Except as expressly provided herein, no Party has the authority, without the relevant Party’s prior written approval, to bind or commit such Party in any way.
22. Subcontractors and Agents.
Nothing herein shall be deemed to prevent or restrict either Party from subcontracting any of its duties or obligations hereunder upon written notice to the other Party, provided that the subcontracting Party shall remain at all times liable for the performance of such duties or obligations as if the subcontracting Party had performed such duties or obligations itself.
All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement including, without limitation, Sections 2.1(b), 2.3(b), 2.5, 2.6, 2.8, 4.2, 5, 6.3, 7, 8, 9, 10, 11 and 13-19, shall survive the termination or expiration of this Agreement.
24. Severability; Waiver.
If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the Parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement. The failure by either Party to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by any other Party in the performance of or compliance with any of the terms and conditions set forth in this Agreement.
Lightrail Client Service Agreement last updated: July 15, 2019