“Aggregate Data” means any data that is derived or aggregated in de-identified form from (i) any Merchant Materials; or (ii) Merchant’s and/or its Authorized Users’ Use of the Subscription Services.
“Company IP” means the Subscription Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services or any Professional Services, Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.
“Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Company to Merchant (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Merchant.
“End Users” means end users of the Sites, including Merchant’s customers and potential customers.
“Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as set forth in the applicable Service Agreement, including any limits on the number of Authorized Users permitted to Use the Subscription Services or the number of web pages, Sites, or customer accounts based on Merchant’s subscription tier.
“Merchant Materials” means all information, data, content and other materials, in any form or medium, that is transmitted or otherwise provided by or on behalf of Merchant or any End Users through the Subscription Services or to Company in connection with Merchant’s Use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other Company IP.
“Service Agreement” means a (i) mutually executed service agreement or other mutually agreed upon ordering document; (ii) purchase order issued by Merchant and accepted by Company in writing; or (iii) quote issued by Company and accepted by Merchant, in each case which references this Agreement and sets forth the applicable Subscription Services and/or Professional Services to be provided by Company.
“Professional Services” means the customization, integration, implementation and/or other professional services, if any, described in the applicable Service Agreement.
“Subscription Services” means the proprietary technology platform provided by Company, as more particularly described or identified in the applicable Service Agreement.
“Use” means to use and access the Subscription Services in accordance with this Agreement and the Documentation, including by making the Subscription Services available to End Users via the Sites.
(a) Services. Company will provide the Subscription Services (and if applicable, the Professional Services) to Merchant in accordance with the terms and conditions set forth in the applicable Service Agreement and this Agreement and any limitations, including without limitation, in connection with the Licensed Volume.
(b) Right to Use the Subscription Services. As between Merchant and Company, Company owns and retains all right, title and interest in and to the Subscription Services, Documentation and the Professional Services, including all intellectual property rights therein and Merchant further assigns to Company any feedback provided by or on behalf of Merchant. Subject to Merchant’s compliance with the terms and conditions of this Agreement, Company hereby grants to Merchant a limited, non-exclusive, non- transferable (except pursuant to Section 12(a)) right to Use the Subscription Services in accordance with, and subject to, the Licensed Volume during the applicable Term. Subject to the limited rights expressly granted hereunder, Company reserves and, as between the Parties will solely own, the Company IP and all rights, title and interest in and to the Company IP. All intellectual property rights created in any Company IP will vest solely in Company upon creation, and to the extent that sole ownership does not originally vest in Company, such intellectual property rights are hereby automatically and irrevocably assigned by Merchant to Company. Merchant will take all actions and execute all documents reasonably requested by Company to give effect to the preceding sentence. No rights are granted to Merchant hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
(c) Use Restrictions. Merchant will not and will not permit any person or entity (including, without limitation, Authorized Users and End Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Subscription Services or the Documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Subscription Services to any other person or entity, or otherwise allow any person or entity to Use the Subscription Services for any purpose other than for the benefit of Merchant in accordance with this Agreement; (iv) Use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law; (v) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Company for use expressly for such purposes; or (vi) Use the Subscription Services, Documentation or any other Company Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services.
(d) Authorized Users. Merchant will not allow any person or entity other than its employees or contractors that it authorizes to Use the Subscription Services on its behalf (“Authorized Users”), excluding, for the avoidance of doubt, making the Subscription Services available to End Users via the Sites. Merchant may permit Authorized Users to Use the Subscription Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) Merchant ensures that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with Merchant’s obligations and the restrictions set forth in Section 2(c). Company may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Merchant in the event that Company reasonably determines that such Authorized User violated this Agreement. Merchant is responsible for all acts or omissions by its Authorized Users in connection with their Use of the Subscription Services and for any use of the Subscription Services by End Users via the Sites.