IOWNMYDATA, INC.
MERCHANT AGREEMENT
This Merchant Agreement (“Agreement”) contains the complete terms and conditions of the agreement between you or the legal entity you represent (hereinafter “Merchant”) and IOwnMyData, Inc. (“Node”), a company established and existing under the laws of the State of
Delaware in the United States of America and maintaining its principal place of business at 3475 Edison Way, Ste R, Menlo Park, CA 94025, USA regarding your participation in the Node Merchant Program (“Merchant Program”).
Background:
Node is a new technology and unique solution specifically designed to help merchants build direct relationships with customers to drive engagement and conversion with requiring the customer to sign up or login to account. Node’s solution enables merchants to provide instantly accessible personalized offers, instant access to order history, 1-Click repeat purchases, and personalized experiences with 100% consumer privacy.
When a customer downloads Node’s standalone mobile app onto a personal device, Node’s patented technology does not utilize any servers to store, access, or transmit customer data to and from any merchant. All customer information is directly sent from the merchant to the customer’s standalone application and vice versa.
Since Node does not store or transmit data, and the data is exchanged directly between the merchant and the customer, all existing information security measures and privacy policies apply without the need for additional measures.
As it relates to Node’s relationship with consumers with the information that is stored in consumer’s Node mobile application, Node’s straightforward privacy policy is available at https://www.nodemy.info/privacy.html along with terms of service available at https://www.nodemy.info/tos.html.
Service Terms and Conditions
1. Definitions.
a. “Effective Date” means the date that Merchant officially launches the Node provided messaging on Merchant’s website(s) listed in Schedule A.
b. “Merchant” has the meaning set forth in the first paragraph of this Agreement.
c. “Merchant Fee” means a percentage of the gross amount of each purchase originated through the customer’s Node mobile application and in accordance with Schedule A.
d. “Merchant Program” has the meaning set forth in the first paragraph of this Agreement.
e. “Node” has the meaning set forth in the first paragraph of this Agreement.
2. Term and Termination. This Agreement shall take effect on the Effective Date and continues for a period of one (1) year (“Initial Term”). At the end of the Initial Term of this Agreement, the Term shall automatically renew for additional one (1) year periods (“Renewal Term(s)”) with the same Merchant Fee outlined in Schedule A, unless either Merchant or Node provides written notification to of its intent to terminate this Agreement at least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term. In addition to any other available remedies, if either Merchant or Node breaches any of the conditions of this Agreement and fails to cure such breach within thirty (30) days after written notice from the non-breaching party, the non-breaching party may terminate this Agreement by written notice. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
3. Fees and Taxes. Node shall provide Merchant with an invoice for all Merchant Fees on a monthly basis. All fees are due and payable in U.S. dollars within 30 days of the Node invoice date and shall be paid via electronic funds transfer to Node’s bank in accordance with the instructions on the Node invoice. Merchant shall be responsible for, and shall remit, any and all applicable sales, use, goods, services, value added, ad valorem and other taxes or duties imposed by local, state or federal authorities on the Merchant Fee, other than state and federal income taxes imposed on Node’s taxable income or payroll taxes. If Merchant believes that the Merchant Fee has been improperly calculated, Merchant shall send written notice to Node within five (5) business days of receipt of the invoice. Merchant and Node shall meet and confer to reach a resolution of any such challenged invoice. Provided however, that Merchant shall pay the undisputed amount of any invoice as set forth herein.
4. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
5. Compliance with Law. Merchant shall comply with all applicable laws, regulations, policies, including without limitation, privacy laws.
6. Acceptable Use. Merchant shall not participate in the Merchant Program if Merchant uses the services of the Merchant Program in connection with any or all of the following:
a. any illegal or fraudulent activity;
b. to violate the rights of others;
c. to threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm;
d. for any content or activity that promotes child sexual exploitation or abuse;
e. to violate the security, integrity, or availability of any user, network, computer or communications system, software application, or network or computing device;
f. to distribute, publish, send, or facilitate the sending of unsolicited mass email or other messages, promotions, advertising, or solicitations;
g. to sell prescription drugs, firearms and ammunitions, or material that is sexually explicit, or relates to “adult services.”
7. Representations and Warranties.
a. Of Merchant. Merchant represents, warrants, and covenants to Node that (a) Merchant will operate its website in accordance with this Agreement, (b) neither Merchant’s participation in Node’s Merchant Program nor Merchant’s creation, maintenance, or operation of its website will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over Merchant (including all such rules governing communications, data protection, advertising, and marketing), (c) Merchant is lawfully able to enter into contracts, (d) Merchant have independently evaluated the desirability of participating in Node’s Merchant Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement, (e) Merchant will not participate in the Node Merchant Program if it is the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where Merchant is using the Node services; (f) Merchant will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services, and (g) the information that Merchant provides to Node and to all third parties in connection with the Node Merchant Program is accurate and complete at all times.
b. Of Node. Node represents, warrants, and covenants to Merchant that (a) Node is lawfully able to enter into contracts and (b) Node will comply with all applicable laws.
8. Indemnification. Node shall hold Merchant harmless from liability to third parties resulting from infringement by the Merchant Program of any United States patent or any copyright or misappropriation of any trade secret, provided Node is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Node will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the services under the Merchant Program that are (i) not supplied by Node, (ii) made in whole or in part in accordance with Merchant’s specifications, (iii) that are modified after delivery by Node, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Merchant continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Merchant’s use of the service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the services of the Merchant Program are held by a court of competent jurisdiction to be or are believed by Node to be infringing, Node may, at its option and expense (a) replace or modify the service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Merchant a license to continue using the service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Merchant’s rights hereunder.
9. Limitations of Liability. Node and any of its officers, directors, employees, shareholders or agents of any of them shall not be liable to Merchant for any amount or kind of loss or damage that may result to Merchant or any third party (including without limitation, any direct, indirect, punitive or consequential loss or damages, or any loss of income, profits, goodwill, data, contracts, use of money, or loss or damages arising from or connected in any way to business interruption, and whether in tort (including without limitation negligence), contract or otherwise) in connection with this Agreement. Node’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise (a “Claim”), shall be limited to a sum equal to the aggregate amount which Node is owed by Merchant in the twelve (12) month period immediately prior to the period giving rise to such Claim.
10. Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Node includes non-public information regarding features, functionality and performance of the services of the Merchant Program. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
11. Use of Marks. Merchant may use the marks made available to it by Node in connection with the Merchant Program (the “Node Marks”). Merchant may not use or display the Node Marks to disparage us, our products or services; or in a way that may, at our discretion, diminish or otherwise damage our goodwill in the Node Marks. Node will supply an image or images of the Node Marks for Merchant to use on the Merchant’s website(s). Merchant may not alter any Node Mark in any manner without Node approval. For example, Merchant cannot change the proportion, color, or font of any Node Mark, or add or remove any elements from any Node Mark without Node approval. Under no circumstance can any Node Mark be placed on any background that interferes with the readability or display of that Node Mark. All rights to the Node Marks are our exclusive property, and all goodwill generated through your use of any Node Mark will inure to Node’s exclusive benefit. Merchant will not take any action that conflicts with Node’s rights in, or ownership of, any Node Mark.
12. Assignment. Either party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent.
13. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. In the interest of resolving any disputes that arise between Merchant and Node in the most expedient and cost-effective manner, Merchant and Node agree that all disputes arising in connection with the Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes, but is not limited to, all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. MERCHANT UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT TO ARBITRATE, MERCHANT AND NODE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Any arbitration between Merchant and Node will be governed by the Commercial Dispute Resolution Procedures and the Consumer Arbitration Rules (collectively herein, “AAA Rules”) of the American Arbitration Association (herein “AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Node. If the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 shall be null and void and, in such case, the parties agree that such action arising out of or related to the Agreement shall be brought in the state or federal courts located in San Francisco, State of California.
14. Miscellaneous. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Merchant does not have any authority of any kind to bind Node in any respect whatsoever.
Schedule A
Pricing/Commercial Terms and Conditions
(1) Merchant agrees to pay Node a Merchant Fee outlined in the table below and based on a percentage of each purchase originating from the Node mobile application during the Initial Term. For the avoidance of doubt, the Merchant Fee does not apply for repeat purchases from existing Node users that originated on the Customer’s website(s).
Website Messaging:
Order Confirmation Page, Product Page, Shopping Cart
Merchant Fee (%):
5.0
(2) After the Initial Term, and provided that Merchant is not using advanced functionality outside of the standard Services since the original Launch, Node reserves the right to increase the Merchant Fee at any time by no more than 5% of the original Merchant Fee with prior written notice to Merchant of 180 days.
