GameChanger App EULA - Hospitality Payments

1.INTRODUCTION

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE TRANSACTION SERVICES.

Welcome to GameChanger! GameChanger is an online payments platform provided and made available to you by Hospitality Payments, a corporation having its principal place of business at 305 10 Ave SE Calgary, Alberta (“Company”, “GameChanger” “we”, “us” or “our”). This GameChanger Merchant Agreement and all attached schedules (the “Agreement”) constitutes a legally binding agreement between the entity or person that registers for a GameChanger Account (defined below) (“Merchant”) and GameChangerregarding Merchant’s access to and use of the Transaction Services (defined below).

By clicking on the “I AGREE” button, signing this Agreement or a similar affirmation, or by acknowledging acceptance of the Agreement by any other method allowed by GameChanger or by accessing or using the Transaction Services, Merchant agrees to be bound by this Agreement (the earliest of which is the “Effective Date”). Merchant should also read GameChanger’s privacy policy located at  (the “Privacy Policy”), which is incorporated by reference into this Agreement. If Merchant does not wish to be bound by this Agreement, please do not access or use the Transaction Services.

If you are entering into this Agreement on behalf of a Merchant, you represent that you have the authority to bind such entity and its affiliates to this Agreement or if an individual that you are of the legal age to enter into a binding contract under applicable law. If you do not have such authority, you must not accept this Agreement.

GameChanger may update or revise this Agreement from time to time by publishing a notice of such updates on GameChanger’s website. Merchant agrees that it will review this Agreement periodically. If Merchant does not agree to the terms of this Agreement or any modified version of this Agreement, Merchant’s sole recourse is to terminate its use of the Transaction Services in accordance with this Agreement. If Merchant breaches this Agreement, Merchant’s authorization to use the Transaction Services automatically terminates and Merchant must discontinue all use of the Transaction Services.

2.DEFINITIONS

“Account” or “GameChanger Account” has the meaning ascribed to it in Section 8.

“Aggregated Data” has the meaning ascribed to it in Section 15.3.

“Agreement” has the meaning ascribed to it in Section 1.

“APIs” has the meaning ascribed to it in Section 4.

“Business Integrity Laws” means applicable laws relating to corruption, money laundering/terrorist financing and economic sanctions in any and all jurisdictions in which GameChanger or Merchant resides or does business or where this Agreement is or may be performed.

“Confidential Information” has the meaning ascribed to it in Section 19.1.

“Contents” has the meaning ascribed to it in Section 17.

“Disclosing Party” has the meaning ascribed to it in Section 19.1.

“Documentation” has the meaning ascribed to it in Section 7.

“Effective Date” has the meaning ascribed to it in Section 1.

“GameChanger” or “Company” “we” “us” “our” refers to Hospitality Payments

“GameChanger Cloud” has the meaning ascribed to it in Section 4.

“GameChanger Data” has the meaning ascribed to it in Section 15.1.

“GameChanger Partner” has the meaning ascribed to it in Section 3.

“Force Majeure Event” includes (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) requirements of law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power; (j) epidemics or pandemics including but not limited to COVID-19.

“Marks” means logos, trade names, service marks and trademarks.

“Merchant” has the meaning ascribed to it in Section 1.

“Merchant Data” has the meaning ascribed to it in Section 15.1.

“Payment Networks” means Visa, MasterCard, American Express, Discover Financial Services, and any affiliates thereof or any other payment network applicable to this Agreement.

“Personal Information” means any information relating to an identified or identifiable natural person.

“Privacy Policy” has the meaning ascribed to it in Section 1.

“Receiving Party” has the meaning ascribed to it in Section 19.2.

“Term” has the meaning ascribed to it in Section 6.

“Transaction Services” has the meaning ascribed to it in Section 4.

3. RELATIONSHIP TO GameChanger PARTNERS

A merchant may have enrolled in the Transaction Services (as defined below) via an authorized GameChanger partner (the “GameChanger Partner”). In addition to any other agreement Merchant may have with the GameChanger Partner, the terms and conditions of this Agreement govern Merchant’s use and GameChanger’s provision of the Transaction Services. Merchant expressly acknowledges and agrees that GameChanger, GameChanger Partners, suppliers and/or their agents/contractors may transfer data amongst themselves as necessary for the purpose of the provision and management of the Transaction Services.

Notwithstanding anything to the contrary in this Agreement: (i) a GameChanger Partner may charge, bill, and collect fees from Merchant, in the amounts stated in and in accordance with the terms and conditions of the agreement between Merchant and such GameChanger Partner (ii) if Merchant is to be billed by a GameChanger Partner for some or all of the fees associated with Transaction Services, Merchant shall pay the GameChanger Partner in accordance with the terms mutually agreed upon between Merchant and such GameChanger Partner and any amounts referenced to being owed to GameChanger herein shall mean amounts owed to GameChanger Partner (iii) if Merchant’s relationship with a GameChanger Partner expires or terminates and such GameChanger Partner was billing Merchant for certain fees, Merchant agrees to pay GameChanger for any further use of the Transaction Services effective immediately upon any such expiration or termination in accordance with the terms herein (iv) if Merchant’s access to and use of the Transaction Services were sourced by a GameChanger Partner, and if GameChanger receives notice from such GameChanger Partner that it has terminated or suspended its relationship with Merchant, GameChanger may suspend and/or terminate Merchant’s right to access and use the Transaction Services and/or additional services and/or this Agreement without notice and without liability. In addition, GameChanger may suspend and/or terminate the Transaction Services and/or additional services and/or this Agreement without notice and without liability upon receipt of notice from GameChanger Partner, Merchant’s processor or acquiring bank that Merchant is no longer entitled to send an authorization or payment data related to a card transaction to Merchant’s processor.

4. THE SERVICES

GameChanger is an online payment technology infrastructure that enables Merchant to accept payments from Merchant’s customers for thee purchase of goods and services from Merchant (the “GameChanger Cloud”). If Merchant is current in payment of all fees owing to GameChanger and is otherwise not in default under this Agreement GameChanger will provide (i) Merchant with access to and use of GameChanger’s application program interfaces (“APIs”) (ii) the GameChanger Cloud and (iii) provide Merchant with solutions that enable Merchant to accept payments from Merchant’s customers for Transactions, and (iv) GameChanger or a GameChanger Partner shall provide support service to Merchant, as set forth on the GameChanger website at Partner Support (together, the “Transaction Services”) in accordance with the terms of this Agreement.

5. ADDITIONAL SOLUTIONS AND SERVICES

In the event that Merchant enrolls in and/or utilizes any of GameChanger’s additional services that may be provided in the future, Merchant hereby acknowledges and agrees, in absence of specific terms and conditions for the additional services, to the terms and conditions contained in this Agreement apply to any and all additional services.

6. TERM

The Term of this Agreement will be for 30 days from the Effective Date of the Agreement and will automatically renew for consecutive terms until cancelled by Merchant or GameChanger (the “Term”).

7. LICENCE GRANT

During the Term, GameChanger grants Merchant a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Transaction Services and user guides (the “Documentation”) solely as required to access and use the Transaction Services. By accessing or using the Transaction Services, the Merchant agrees that the Merchant will only access the Transaction Services by the means described in the Documentation of the Transaction Services.

Merchant agrees and acknowledges that the Transaction Services may change from time to time without prior notice to Merchant and that GameChanger may stop (permanently or temporarily) providing the Transaction Services (or any component of the Transaction Services) to Merchant, at GameChanger’s sole discretion, without prior notice to Merchant. A merchant may stop using the Transaction Services at any time in accordance with the terms of this Agreement.

Except as permitted in this Agreement Merchant shall not: (i) possess, download or copy the Transaction Services or any part of the GameChanger Cloud, including but not limited to any component which comprises the Transaction Services, but not including any output from the Transaction Services; (ii) knowingly interfere with the Transaction Services or GameChanger Cloud or any of GameChanger’s users, partners, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (iii) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Transaction Services and/or Documentation (iv) circumvent any user limits or other timing or use restrictions that are built into the GameChanger Cloud or Transaction Services; (v) sell, rent, lend, transfer, distribute, license, or grant any rights in the Transaction Services, GameChanger Cloud or Documentation in any form to any person without the written consent of GameChanger; (vi) remove any proprietary notices, labels, or Marks from the Transaction Services, GameChanger Cloud or Documentation; (vii) use all or any portion of the Transaction Services or GameChanger Cloud in the design, construction, operation or maintenance of any nuclear facility; (viii) create any “links” to or “frame” or “mirror” of the Transactions Services or GameChanger Cloud or any portion thereof; (ix) build a product or service that is competitive with the Transaction Services or GameChanger Cloud; (x) copy any ideas, features, functions or graphics of the Transaction Services or GameChanger Cloud; or (xi) use the Transaction Services in violation of applicable laws.

All rights and licenses granted to Merchant in the Transaction Services shall terminate automatically upon termination of this Agreement or any Transaction Services to which the rights and licenses relate. Merchant will use commercially reasonable efforts to protect the Personal Information that Merchant collects or processes through the Transaction Services and comply with all applicable laws.

GameChanger reserves the right to change or temporarily suspend Merchant’s access to the Transaction Services. GameChanger may monitor the use of the Transaction Services to improve them and to verify Merchant’s compliance with this Agreement.

8. GameChanger ACCOUNT

Only entities or persons located in Canada and the United States are eligible to register for a GameChanger Account. To use the Transaction Services, the Merchant must register for an account (“GameChanger Account” or “Account”). Merchant is solely responsible for ensuring that the use of the Transaction Services in accordance with this Agreement is permitted by law or regulation in Merchant’s jurisdiction. If such use is not permitted by law, GameChanger prohibits all access to and use of the Transaction Services.

As part of the registration process, the Merchant will be required to provide GameChanger with certain information, such as business or trade name, government-issued identification, supplier invoices, email address, mailing address, phone number and any other information that GameChanger requires from Merchant to verify the ownership, control and identity of the Merchant, to assess risk and for compliance purposes. Merchant will also be required to provide GameChanger with payment and banking information to facilitate payments to Merchant’s selected bank account. For more information about the information that GameChanger collects, please see our Privacy Policy. Merchant agrees that Merchant will provide accurate, current and complete information about itself and promptly update all information in its GameChanger Account to ensure that the GameChanger Account is accurate, current and complete. Merchant may update or change its GameChanger Account settings at any time. Merchant is not permitted to provide any unauthorized person with access to its GameChanger Account.

If you are creating a GameChanger Account(s) on behalf of a company, you represent and warrant that you have been authorized and have the necessary authority to create the GameChanger Account and that you have shared all user names, passwords, and access credentials with other authorized representatives of the company.

8.1 Account Confidentiality

Merchant is responsible for maintaining the confidentiality of Merchant’s GameChanger Account credentials. Merchant must notify GameChanger if Merchant becomes aware of a potential breach of security, such as the unauthorized disclosure of Merchant’s GameChanger Account credentials, and/or authorized access, use or disclosure of Personal Information that Merchant collects or processes through the Transaction Services. Merchant shall provide sufficient information about such breach or unauthorized access, use or disclosure to allow GameChanger to comply with its obligations under applicable law. Merchant acknowledges and agrees that GameChanger shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with the unauthorized use of the GameChanger Account arising from a failure by Merchant to maintain the confidentiality of Merchant’s password.

8.2 Account Termination and Cancellation

GameChanger may terminate, suspend or otherwise restrict or prohibit Merchant’s access to its GameChanger Account at any time and for any reason, with or without cause, without prior notice to Merchant and without any liability or further obligation of any kind whatsoever to Merchant or any other party. Merchant acknowledges and agrees that if GameChanger disables access to its GameChanger Account, Merchant may be prevented from accessing the Transaction Services. In the event, the Merchant wants to cancel Transaction Services, the Merchant must notify GameChanger immediately in writing of such cancellation.

9. USE OF THE TRANSACTION SERVICES

Merchant may only use the Transaction Services to accept payments from Merchant’s customers that purchase goods and services from Merchant. Merchant represents and warrants that it currently meets and will continue to meet the following conditions:

Merchant has not made any false representation to GameChanger, including impersonation of any person or entity or misrepresentation of Merchant’s affiliation with any person or entity;
Merchant has not made any false representations to GameChanger regarding any authorizations, licenses, registrations or exemptions from any government agency or entity;
Merchant does not provide any unlawful products or services; and
Merchant, nor any of its officers or directors, have been convicted of fraud in any jurisdiction or have been or are in breach of Business Integrity Laws. Unless Merchant has been specifically permitted to do so in a separate agreement with GameChanger, Merchant agrees that it will not reproduce, duplicate, copy, sell, trade or resell the Contents (defined below), Transaction Services or any of our products and services for any purpose. Merchant agrees that it will not use the Transaction Services to:
Promote or engage in any fraudulent, unlawful or illegal activities;
Accept payments for any material that Merchant does not have a right to make available or that infringes any patent, trade-mark, trade secret, copyright or other proprietary rights of any person.
Upload or otherwise make available any material that contains viruses, malware or other malicious software
Engage in any activity that interferes with or disrupts the use of the Transaction Services, including bypassing any measures GameChanger may use to prevent unauthorized access to the Transaction Services; *
Engage in any activity that attempts to extract any proprietary software used to maintain the Transaction Services;
Sell or otherwise monetize the Transaction Services without GameChanger’s consent.

Merchant agrees that it is solely responsible for (and that GameChanger has no responsibility to Merchant or to any third party for) any breach of Merchant’s obligations under this Agreement and for the consequences (including any loss or damage which GameChanger may suffer) of any such breach.

GameChanger reserves the right to terminate this Agreement, close Merchant’s Account or suspend the Merchant’s Account (and Merchant’s ability to access funds in the Account) if GameChanger determines, in its sole discretion, that Merchant presents a significant fraud or credit risk or is otherwise using the Transaction Services in a prohibited manner.

10. RELATIONSHIP WITH MERCHANT’S CUSTOMERS

Merchant is responsible for Merchant’s relationship with Merchant’s customers. GameChanger is not responsible for the products or services that Merchant offers or sells to its customers, or that Merchant’s customers purchase using the Transaction Services.

MERCHANT ACKNOWLEDGES AND AGREES THAT MERCHANT IS SOLELY RESPONSIBLE FOR THE NATURE AND QUALITY OF THE PRODUCTS OR SERVICES MERCHANT PROVIDES, AND FOR DELIVERY, SUPPORT, REFUNDS, RETURNS OR ANY ANCILLARY SERVICES MERCHANT PROVIDES TO ITS CUSTOMERS.

Merchant agrees to comply with all consumer protection laws applicable to a Transaction, including providing Merchant’s customers with any necessary information. Merchant agrees to (i) accurately represent the nature of the Transaction and the cost of the product or service; (ii) provide Merchant’s customers with a receipt for each Transaction; and (iii) communicate any refund, return, exchange and/or cancellation policy applicable to a Transaction to its customers (iv) keep all usual and proper records and books of account and all usual and proper entries relating to each Transaction involving the Transactions Services or any portion thereof.

11. FEES

Unless identified in Section 3, GameChanger will charge and Merchant will pay the fees on the terms and conditions as set out in the Merchant’s processing agreement.

12. REFUNDS AND REVERSALS

Merchant and not GameChanger will be responsible for any refunds or Transaction reversals processed using the Transaction Services to the Merchant’s customer.

13.TRANSACTION LIABILITY

Merchant is solely responsible for any losses Merchant incurs in connection with Transactions processed using the Transaction Services. GameChanger shall not be responsible for any erroneous or fraudulent Transactions processed using the Transaction Services.

14. WARRANTIES, REPRESENTATIONS AND ADDITIONAL COVENANTS.

Merchant represents, warrants and covenants that at all times during the Term of this Agreement and any renewal thereof: (i) all representations and statements made by Merchant in this Agreement, or in any other document relating hereto by Merchant or on Merchant’s behalf, are true, accurate and complete in all material respects; (ii) it is engaged in a lawful business and has all necessary rights and authorizations to sell and distribute its products and/or services; (iii) Merchant will comply, at Merchant’s own expense, with all laws, policies, guidelines, regulations, ordinances or rules applicable to Merchant, this Agreement, customer data or the Transactions, including, without limitation: (a) the operating rules, bylaws, schedules, supplements and addenda, manuals, instructions, releases, specifications and other requirements, as may be amended from time to time, of any of the Payment Networks; (b) the Payment Card Industry Data Security Standard (PCI DSS) as may be amended from time to time; (c) any regulatory body or agency having jurisdiction over the subject matter hereof; and (d) any services Documentation; (iv) each Transaction will represent a bona fide sale to Merchant’s customer by Merchant for the amount shown on the sales draft as the total sale and constitutes the binding obligation of the customer, free from any claim, demand, defense, setoff or other adverse claim whatsoever (v) Merchant will fulfill completely all of its obligations to the customer and will resolve any customer dispute or complaint directly with the customer.

15. MERCHANT DATA

15.1 Ownership of Data

As between GameChanger and Merchant, Merchant exclusively owns all rights, title and interest in and to (i) all data submitted by Merchant using the Transaction Services; and (ii) customer information collected or generated by Merchant by virtue of its relationship with customer aside from the customer’s use of the Transaction Services (“Merchant Data”). In the event that Merchant’s system is breached and an unauthorized third party has access to or has accessed Merchant Data or GameChanger Data, Merchant shall notify GameChanger promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future. As between GameChanger and Merchant, GameChanger shall exclusively own all rights, title, and interest in and to all data collected or generated by GameChanger in connection with a customer’s use of the GameChanger Cloud (“GameChanger Data”).

15.2 Protection of Merchant Systems and Merchant Data

The Transaction Services are accessed through the internet, which is a public system of which GameChanger has no control. It is Merchant’s obligation to continuously ensure that any computer, hardware and software that Merchant uses to access the Transaction Services is free from and adequately protected against computer viruses and other destructive or disruptive components. Merchant is liable for any telephone, internet or other communication provider charges from Merchant’s providers resulting from Merchant’s use of the Transaction Services.

Merchant is solely responsible for the performance and protection of any browser used in connection with the Transaction Services including without limitation the prompt adoption by Merchant of all security patches and other security measures issued or recommended from time to time by the suppliers of such browsers, and GameChanger shall not be liable for any damage to or reduction in the performance of Merchant’s computer system or any part thereof by the installation or use of any browser version required to use the Transaction Services. From time to time GameChanger may publish details of any restrictions relating to certain browser versions used in conjunction with the Transaction Services. Merchant agrees never to ask a Merchant’s customer to disclose their PIN to Merchant nor to use any other means outside of the Transactions Services to capture Merchant’s customer’s PIN. Merchant agrees to follow security procedures as advised by GameChanger and to ensure that Merchant’s employees are familiar with them.

Merchant shall secure all Merchant Data with all necessary safeguards appropriate to the level of sensitivity of the information. GameChanger shall only process Merchant Data (including Personal Information included in the Merchant Data) on behalf of and in accordance with Merchant’s documented instructions, applicable privacy laws and GameChanger’s Privacy Policy for the following purposes: (i) processing in accordance with this Agreement; (ii) processing initiated by Merchant in Merchant’s use of the Transaction Services; and (iii) processing to comply with other documented reasonable instructions provided by Merchant where such instructions are consistent with the terms of this Agreement. Merchants will not reveal, sell or distribute to a third party any customer information collected or generated by Merchant by virtue of its relationship with customer aside from the customer’s use of the Transaction Services.

In connection with the provision of the Transaction Services, GameChanger will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of all Merchant Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Merchant Data by GameChanger personnel except (a) to provide the Transaction Services and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, or (c) as expressly permitted in writing by Merchant. GameChanger shall ensure that its personnel engaged in the processing of Merchant Data are informed of the confidential nature of the Merchant Data and have received appropriate training on their responsibilities and GameChanger shall take commercially reasonable steps to ensure the reliability of any GameChanger personnel engaged in the processing of Merchant Data.

15.3 Aggregated Data

Merchant grants GameChanger a non-exclusive, transferable, assignable, irrevocable, royalty-free, worldwide, perpetual license to create aggregated, anonymized and de-identified Merchant Data (“Aggregated Data”) and to use such Aggregated Data, and all modifications thereto and derivatives thereof, for any purpose, including, without limitation: to improve the GameChanger Cloud and Transaction Services; conduct research; develop new products and services; understand usage; and for predictive analytics and insights. GameChanger shall own all Aggregated Data and may transfer or assign any of its rights in the Aggregated Data to any third party. GameChanger warrants and represents that it is using methods and processes that are meant to ensure the irreversibility of the Aggregated Data.

15.4 Data Portability and Deletion

Upon the termination or cancellation of a GameChanger Account, GameChanger will, upon receipt of a written request from the Merchant, provide Merchant with 90 days from the date of termination or cancellation to export and download its Merchant Data. After such 90-day period, GameChanger will have no obligation to maintain or provide any Merchant Data, and will thereafter delete or destroy all copies of Merchant Data in its systems or otherwise in its possession or control, unless legally prohibited.

16. PRIVACY AND PERSONAL INFORMATION

To request the consent of COMPANY for any of the actions for which such consent is required under these Terms of Use, please send an e-mail to support@payGameChanger.com.  COMPANY reserves the right to refuse any such requests at its sole discretion.

Each party will comply with the applicable privacy laws with respect to any Personal Information that is in its custody or control in connection with the performance of its obligations under this Agreement. For more information about GameChanger’s collection, use, disclosure and protection of Personal Information, please read GameChanger’s Privacy Policy.

17. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

The contents of the Transaction Services include, without limitation, all information, data, products, materials, services, software applications and tools, design elements, text, images, photographs, illustrations, audio and video contents, artwork and graphics contained therein or otherwise made available to you in connection therewith (collectively the “Contents”).

The Transaction Services, together with trade-marks and other intellectual property displayed, distributed, or otherwise made available via the Transaction Services, is and shall remain the exclusive property of GameChanger, and its successors, assigns, licensors, and/or suppliers. Unless Merchant has agreed otherwise in writing with GameChanger, nothing in this Agreement gives Merchant a right to use any of the Contents, Transaction Services, GameChanger’s trade-marks or other intellectual property of GameChanger. Merchant may not assign or transfer any of the Contents or Transaction Services and Merchant may not grant a license to use or access the Transaction Services to any third party.

No information or statement contained in this Agreement or the Transaction Services shall be construed as conferring, directly or by implication, estoppel or otherwise, any license or right under any patent, copyright, trade-mark, or other intellectual property right of GameChanger or any third party. Unless otherwise permitted in this Agreement, Merchant must not alter, delete, or conceal any copyright or other notices contained on the Transaction Services, including but not limited to notices on any of the Contents or APIs that Merchant is permitted to download, transmit, display, print, or reproduce.

Any unauthorized or prohibited use of any Contents or Transaction Services may subject Merchant to civil liability, criminal prosecution, or both, under applicable federal, provincial, state and local laws. The limited rights granted to Merchant under this Agreement may be revoked by GameChanger at any time for any reason whatsoever.

18. TRADEMARKS

18.1 Use of GameChanger Marks

Subject to the terms and conditions contained herein, GameChanger hereby grants to Merchant a non-exclusive, royalty-free, fully-paid up right to use, reproduce, publish, perform and display the GameChanger Marks on Merchant’s website in connection with Customer’s offering of payment options to its customers.

18.2 Use of Merchant’s Marks in White Label Option

If Merchant has selected the ‘white label’ option, Merchant hereby grants to GameChanger a non-exclusive, royalty- free, fully-paid up right to use, reproduce, publish, perform and display Merchant’s Marks as necessary in connection with the performance of the Transaction Services.

18.3 Use of Trademarks

Each party shall strictly comply with all standards with respect to the other party’s Marks contained herein or which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more Marks of the other party. All uses of the other party’s Marks shall inure to the benefit of the party owning such Mark. Either party may update or change the list of Marks usable by the other party hereunder at any time by written notice to the other party.

18.4 Use the Appropriate ® or TM Symbol

Merchant must reproduce any GameChanger trademarks exactly as directed by GameChanger, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or TM symbol at the first and most prominent reference, or as soon as practicable thereafter.

18.5 Trademarks and Domain Registration

Except as otherwise provided herein, Merchant shall not use, register or attempt to register any (a) GameChanger Marks or (b) domain names that are confusingly similar to any of the GameChanger Marks or GameChanger’s domain name(s).

18.6 Trademark Restrictions

Merchant shall not (a) use the GameChanger Marks except as expressly authorized in this Agreement; (b) take any actions inconsistent with GameChanger’s ownership of the GameChanger Marks and any associated registrations, or attack the validity of the GameChanger trademarks, its ownership thereof, or any of the terms of this Agreement; (c) use the GameChanger Marks in any manner that would indicate Merchant is using such GameChanger Marks other than as a licensee of GameChanger; nor (d) assist any third party do any of the same.

19. CONFIDENTIALITY

19.1 Confidential Information

All information that one party provides to the other party during the Term of this Agreement that is identified at the time of disclosure as confidential or reasonably thought to be confidential in the context of the disclosure, whether verbally or in writing, shall be confidential information (all of the foregoing collectively are referred to as “Confidential Information”) of the disclosing party (the “Disclosing Party”).

19.2 Confidentiality Obligations

Neither party (the “Receiving Party”) will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information on a ‘need to know’ basis to perform under this Agreement and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure.

19.3 Exceptions

With the exception of Personal Information, nothing in this Agreement will prohibit or limit either party’s use of Confidential Information that was (a) previously known to it without obligation of confidence, (b) independently developed by or for it without use of or access to the other party’s Confidential Information, (c) acquired by it from a third party which is not under an obligation of confidence with respect to such information, or (d) which is or becomes publicly available through no breach of this Agreement. The use of any Personal Information is contingent upon permissions from the individual to whom the Personal Information belongs to and/or any legitimate uses allowed under applicable law.

19.4 Equitable Relief

Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 19.

19.5 Return of Confidential Information

Within five (5) days after a Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information and certify to the other party that this has been done.

19.6 Permitted Disclosures

Notwithstanding the foregoing, either party may also disclose the terms and conditions of this Agreement: (i) to legal counsel of the parties; (ii) in confidence, to accountants, banks, prospective investors, and financing sources and their advisors; (iii) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (iv) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or similar transaction.

20. TERMINATION

GameChanger may terminate Merchant’s use of the Transaction Services and/or access to the Contents, APIs, additional services, features, functionality, products and services made available in connection therewith, at any time and for any reason, with or without cause, without prior notice to Merchant and without any liability or further obligation of any kind whatsoever to Merchant or any other party.

A merchant may terminate this Agreement if GameChanger materially breaches this Agreement and GameChanger fails to cure such breach within thirty (30) days following written notice by Merchant of such breach.

When this Agreement comes to an end, all of the legal rights, obligations and liabilities that Merchant and GameChanger have benefited from, been subject to (or which have accrued over time while this Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by such termination.

21. THIRD-PARTY INFORMATION

Any third-party content, data or publications made available through the Transaction Services are furnished by GameChanger on an as-is basis for Merchant’s convenience and information. Any opinions, advice, statements, services, offers, or other information made available by third parties are those of the respective author(s) or publisher(s) and not of GameChanger. GameChanger DISCLAIMS ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT THE INFORMATION IN SUCH PUBLICATIONS IS ACCURATE OR COMPLETE.

22. WARRANTY DISCLAIMER

SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF WARRANTIES. IN THESE JURISDICTIONS, MERCHANT HAS ONLY THE WARRANTIES THAT ARE EXPRESSLY REQUIRED TO BE PROVIDED IN ACCORDANCE WITH APPLICABLE LAW.

IN ALL OTHER JURISDICTIONS, EXCEPT AS EXPRESSLY PROVIDED HEREIN, MERCHANT’S USE OF THE TRANSACTION SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OF THE MERCHANT SERVICES (AND DATA ACCESSED FROM THE TRANSACTION SERVICES) IS PROVIDED TO MERCHANT “AS IS” AND “AS AVAILABLE”. GameChanger EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION, WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.

MERCHANT MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE TRANSACTION SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS, INCLUDING REPRESENTATIONS OR WARRANTIES OF ANY GameChanger PARTNER. MERCHANT’S SOLE AND EXCLUSIVE REMEDY, AND GameChanger’S SOLE OBLIGATION TO MERCHANT OR ANY THIRD PARTY FOR ANY CLAIM ARISING OUT OF MERCHANT’S USE OF THE TRANSACTION SERVICES, IS THAT MERCHANT IS FREE TO DISCONTINUE MERCHANT’S USE OF THE TRANSACTION SERVICES AT ANY TIME.

23. LIMITATION OF LIABILITY

SOME JURISDICTIONS DO NOT PROVIDE EXCLUSION OF LIMITATION OF LIABILITY FOR ALL TYPES OF DAMAGES. IN THOSE JURISDICTIONS, GameChanger WILL ONLY BE LIABLE TO MERCHANT FOR DAMAGES THAT GameChanger IS EXPRESSLY REQUIRED TO BE LIABLE TO MERCHANT UNDER APPLICABLE LAW.

IN ANY OTHER CASE:

(A) MERCHANT EXPRESSLY UNDERSTANDS AND AGREES THAT GameChanger SHALL NOT BE LIABLE TO MERCHANT FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY MERCHANT FROM (A) MERCHANT’S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE MERCHANT’S MERCHANT ACCOUNT;

(B) FRAUDULENT TRANSACTIONS PROCESSED THROUGH MERCHANT’S PAYMENT GATEWAY ACCOUNT(S);

(C) DISRUPTION OF TRANSACTION SERVICES, SYSTEMS, SERVER OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY;

(D) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A GameChanger PARTNER, PAYMENT PROCESSOR OR BANK; OR (E) THE LIMITATION OF THE FUNCTIONING OF ANY TRANSACTION SERVICES OR SOFTWARE, HARDWARE, OR EQUIPMENT ASSOCIATED THEREWITH;

(E) IN CONNECTION WITH THIS AGREEMENT OR MERCHANT’S USE OF THE TRANSACTION SERVICES, HOWEVER, CAUSED AND UNDER ANY THEORY OF LIABILITY INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT, LOST OPPORTUNITIES, LOSS OF DATA SUFFERED, OR OTHER INTANGIBLE LOSS.

(F) GameChanger’S LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED ONE (1) MONTH’S AVERAGE MERCHANT FEES PAID BY MERCHANT TO GameChanger IN THE PREVIOUS TWELVE (12) MONTHS BEFORE THE CLAIM WAS MADE.

THE LIMITATIONS ON GameChanger’S LIABILITY TO MERCHANT IN THIS SECTION SHALL APPLY WHETHER OR NOT GameChanger HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

24. INDEMNIFICATION

Merchant agrees to indemnify and hold GameChanger, GameChanger’s affiliated companies and its respective agents, employees, directors and officers, and GameChanger Partners, harmless from any claim or demand, cause of action, liabilities and expenses (including reasonable lawyer’s fees and any fines including any fines and penalties issued by card companies or Payment Networks and any other fees and costs) due to or arising out of: (i) Merchant’s or their customer’s use of the Transaction Services; (ii) Merchant’s violation of this Agreement; (iii) any misrepresentation made by Merchant or their customers (iv) Merchant’s violation of any rights of another, including Merchant’s customers (v) Merchant’s wilful misconduct, gross negligence or fraud.

25. OBTAINING GameChanger’S CONSENT AND FURTHER ASSURANCES

To request the consent of GameChanger for any of the actions for which such consent is required under this Agreement, please send an e-mail to sales@payGameChanger.com GameChanger reserves the right to refuse any such requests in its sole discretion. On GameChanger’s reasonable request, Merchant will, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, reasonably necessary to give full effect to this Agreement.

26. BUSINESS INTEGRITY

Merchant represents, warrants and covenants that (i) it will comply with all Business Integrity Laws (ii) neither Merchant nor any of its subsidiaries is a sanctioned person under Business Integrity Laws, and (iii) no public official, or sanctioned person under Business Integrity Laws, holds a legal or beneficial ownership interest, position, or title in Merchant. If during the Term of this Agreement, any public official or sanctioned person acquires such an interest, position or title in Merchant, Merchant shall promptly notify GameChanger and GameChanger may take such actions as it deems appropriate under the circumstances, including but not limited to termination of this Agreement.

27. GENERAL

Merchant’s relationship with GameChanger during the Term of this Agreement will be that of an independent contractor. Other than as expressly provided herein, neither party will have any authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any warranties or representations on behalf of the other. Nothing in this Agreement shall be deemed to create any agency, partnership or joint venture relationship between the parties. Each party is solely responsible for all of its employees and agents and its labor cost and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of each party’s activities or those of its employees or agents in the performance of this Agreement.

Merchants understand that purchases of the license to the Transaction Services are neither contingent upon the delivery of any future functionality or features nor dependant upon any oral or written public comments made by GameChanger or Partner with respect to future functionality or features. Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non- exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.

This Agreement and all policies and procedures that are incorporated by reference, including the Privacy Policy, constitute the entire agreement between Merchant and GameChanger relating to Merchant’s use and GameChanger’s provision of the Transaction Services.

Merchant agrees that GameChanger may provide Merchant with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on GameChanger Cloud.

The parties agree that if a party does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which it has the benefit of under any applicable law), this will not be taken to be a formal waiver of its rights and that those rights or remedies will still be available to the party.

If any provision of this Agreement is held to be illegal, invalid or unenforceable, this will not affect any other provision of this Agreement and the agreement between Merchant and GameChanger will be deemed amended to the extent necessary to make it legal, valid, and enforceable.

The parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.

The laws and regulations of the province of British Columbia and the federal laws applicable therein shall govern this Agreement in all respects, without giving effect to conflicts of laws principles, and the courts of the province of British Columbia shall have jurisdiction to hear any question concerning such use. GameChanger shall not be liable or responsible to Merchant, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any Term of this Agreement, when and to the extent the failure or delay is caused by or results from acts beyond GameChanger’s reasonable control, including a Force Majeure Event.

Notwithstanding anything to the contrary in this Agreement, Merchant permits GameChanger to exchange information about Merchant with other financial institutions, payment networks, and any other persons for the purpose of providing the services contemplated in the Agreement.

Merchant may not assign, transfer, or sell any of its rights, or delegate any of its responsibilities under this Agreement without GameChanger’s prior written consent, including, without limitation by merger or change of control as set forth below. All assignments of Merchant’s rights are prohibited by this Section, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. For purposes of this Section, a “change of control” is deemed an assignment of rights and a “merger” refers to any merger in which Merchant participates, regardless of whether it is the surviving or disappearing corporation. Merchant may not delegate any performance under this Agreement. Any purported assignment of rights or delegation of performance in violation of this Section is void.

Those provisions that should survive termination of this Agreement will survive, including but not limited to payment obligations, Merchant’s indemnification obligations, and all disclaimers and limitations of liability.