Merchant Terms & Conditions

Effective date: Sep 1, 2020

Last updated: December 20, 2020

BY INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS (THIS “AGREEMENT”) OR BY OTHERWISE USING OR ACCESSING THE WHYM WALLET PLATFORM (AS DEFINED BELOW) (THE “ACCEPTANCE”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “Merchant” WILL REFER TO SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE WHYM WALLET PLATFORM.  

This Agreement, by and between Merchant and The Whym Group, Inc. (“Whym”), is effective as of the date of Acceptance (the “Effective Date”) and governs Merchant’s use of Whym’s draft order console that integrates with Shopify and Stripe to process orders from your consumers (each, a “Purchase”) using the information stored in the consumer-facing portal that stores consumers’ payment information  (the “Whym Wallet Platform”) made available at www.whymwallet.com (the “Site”).  Whym reserves the right to change or modify portions of this Agreement at any time.  If Whym does so, it will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. Whym will also notify Merchant, either through the Whym Wallet Platform user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than the renewal date of the Agreement upon the expiration of the then current Subscription Term (as defined below). Merchant’s continued use of the Whym Wallet Platform after any such changes or modifications become effective constitutes acceptance of such changes or modifications.  Each of Whym and Merchant may be referred to herein individually as a “Party” or collectively as “Parties”.

1. ACCESS TO PLATFORM.

1.1 Access to Platform.  When signing up for use of the Whym Wallet Platform on the Site (the “Onboarding Process”), Merchant will be redirected to Whym Private App through which the Merchant will grant Whym access to Merchant’s Shopify account and the information therein.  Merchant hereby authorizes Whym to access and use the information in such Merchant’s Shopify account in accordance with Section 1.3 hereof (collectively, the “Shopify Data”). Subject to the terms and conditions of this Agreement, Whym hereby grants Merchant the limited, non-exclusive, non-transferable, non-sublicenseable right to access and use the Whym Wallet Platform solely in connection with processing payments through Whym’s third party payment processor for the sale of Merchant’s goods (the “Products”) to consumers (the “Permitted Purpose”).

1.2 License Restrictions and Merchant Responsibilities.  

a. Merchant will not use the Whym Wallet Platform for any purpose other than the purposes expressly set forth herein.  Merchant may not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Whym Wallet Platform; (ii) modify, translate, or create derivative works based on the Whym Wallet Platform (except to the extent expressly permitted by Whym); (iii) use the Whym Wallet Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (iv) remove any proprietary notices or labels.  Merchant will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Whym Wallet Platform, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like.

b. Merchant may only use the Whym Wallet Platform to support sales to consumers based in the United States and the District of Columbia (excluding Puerto Rico and all U.S. territories and possessions).  Merchant will be solely responsible for confirming that the consumers for whom it processes sales using the Whym Wallet Platform are located in the United States, including by confirming that the consumer has a U.S. phone number, credit card or debit card and shipping address.

c. Other than payment processing facilitated through the Whym Wallet Platform via Stripe (as discussed below) and order confirmation and receipts sent to consumers via Whym’s phone number, Merchant is solely responsible for any relationship and interactions with its consumers, including, but not limited to, (i) all communications with such consumers (including via automated SMS and MMS messages), (ii) marketing of the Products, (iii) manufacturing, fulfillment, distribution and shipping of the Products, (iv) the communication of transaction receipts, any applicable policy for refund, exchange, and returns, and any other information required by law or applicable payment network rules to be disclosed to consumer; (v) all return, refund and exchange requests, (vi) all payment disputes and consumer reports of billing errors; and (vi) all customer services requests (the “Consumer Relationship”).  

1.3 License to Merchant Data.  Merchant hereby grants to Whym: (a) a non-exclusive, worldwide, royalty-free, fully paid up, sublicenseable (through multiple tiers), transferable right and license to copy, distribute, display and create derivative works of and otherwise use other data or information inputted into or uploaded by Merchant to the Whym Wallet Platform, including the Shopify Data (the “Merchant Data”) (i) to exercise its rights and perform its obligations under this Agreement and (ii) to improve its products and services; and (b) a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (through multiple tiers), transferable license to copy, anonymize, process and create derivative works of Merchant Data, in whole or in part, for the purpose of deriving anonymous statistical and usage data, and data related to the Whym Wallet Platform, provided such data cannot be used to identify Merchant or its consumers (“Anonymous Data”) and combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or other sources (when so combined or incorporated, referred to as “Aggregate Data”), for improving Whym’s existing products and services and creating derivatives thereof, developing new Whym products and services and for marketing purposes (e.g., indicating the number of customers using certain Whym services). For clarity, Anonymous Data is not Merchant Data and is owned by Whym.

1.4 Feedback.  Merchant may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Whym with respect to the Whym Wallet Platform.  Whym will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Merchant hereby grants to Whym a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

2. OWNERSHIP; RESERVATION OF RIGHTS.  Merchant acknowledges and agrees that, as between the Parties, Whym retains all right, title and interest in and to the Whym Wallet Platform and all intellectual property rights therein and thereto.  Whym grants no, and reserves any and all, rights other than the rights expressly granted to Merchant under this Agreement with respect to the Whym Wallet Platform.  Merchant will acquire no right, title, or interest in and to the Whym Wallet Platform other than the limited licensed rights expressly granted under this Agreement.  Notwithstanding the foregoing, Merchant retains all right, title and interest in and to the Merchant Data.  

3. FEES; PAYMENT TERMS.

3.1 Fees.  In consideration for the rights granted herein to access and use the Whym Wallet Platform, Merchant agrees to pay Whym the monthly subscription fee identified during the Onboarding Process or at the time of renewal of the Subscription Term, as applicable (the “Subscription Fee”) and Merchant also agrees that Whym will receive a certain percentage of each sale that is processed through the Whym Wallet Platform (the “Service Fee” and together with the Subscription Fee, the “Fees”) that is agreed to by Merchant during the Onboarding Process or at the time of renewal of the Subscription Fee.  The Service Fee will be paid by Merchant to Whym via Stripe upon receipt of payment for a Purchase.  The Subscription Fee will be paid by Merchant to Whym in accordance with the payment schedule that is agreed upon during the Onboarding Process or at the time of renewal of the Subscription Term. Merchant hereby authorizes Whym to automatically charge Merchant’s credit card, commercial debit card or other agreed upon payment method for the full amount of such Subscription Fees in advance of the start of each such Subscription Term. Merchant represents and warrants that any credit or debit card presented to us for payment is a commercial payment card that is not issued or used primarily for personal, family, or household purposes. Merchant understands that this authorization will remain in effect until the expiration or termination of this Agreement.  Merchant will provide true, complete and accurate information with respect to any applicable method of payment and agrees to promptly contact Whym if any such information needs to be updated. Merchant will ensure that Merchant has sufficient funds or credit (as applicable) associated with any selected method of payment.  If Whym is not able to process payment of Fees using Merchant’s selected payment method, Whym may make up to two additional attempts to process payment of the Fees, as permitted by law. If Whym’s final attempt is not successful, we may suspend and revoke access to our services. Payment of any Subscription Fees is non-refundable.

a. Free trials and promotional periods. If a subscription commences with a free trial or a promotional period, you will have the right to cancel the subscription prior to the end of the trial or period. If we do not provide you with an online cancellation mechanism, then you may exercise this cancellation right by contacting us. We will email you prior to the end of the free trial or promotional period to remind you that the trial or period is coming to an end, and to give you an opportunity to cancel before the commencement of the paid period. If you do not cancel, we will bill you at the end of the free trial or promotional period, and your subsequent cancellation rights will be in accordance with the terms specific to the subscription.

b. Cancellation. Your cancellation rights, and the mechanism via which you may notify us of your decision to cancel, will be disclosed to you at or prior to the time at which you purchase a subscription.

3.2 Payment Processing. Payment processing service for the Purchases and the Fees will be provided by third party payment processors, including Stripe, Inc. and its affiliates (“Stripe”, and collectively with any other payment processing service that Company makes available, the “Payment Processor”).  Merchant will render payment in accordance with this Section 3 via the applicable Payment Processors. Merchant’s use of such Stripe services is subject to the Stripe Connect Platform Agreement located at https://stripe.com/connect/legal, which includes the Stripe Services Agreement and Stripe’s Global Privacy Policy located at stripe.com/legal and stripe.com/privacy, respectively (collectively, the “Stripe Service Agreement”) and Merchant’s use of any other Payment Processor’s services is subject to such applicable Payment Processor’s terms and conditions, privacy policy, and all other relevant agreements (collectively, with the Stripe Service Agreement, the “Payment Processor Agreements”). As a condition to using the payment processing services, Merchant is required to accept the Payment Processor Agreements and may be required to open an account or accept other terms and conditions that may be required by the Payment Processor or applicable payment network from time to time. By agreeing to this Agreement or continuing to access or use the Whym Wallet Platform, Merchant agrees to be bound by the applicable Payment Processor Agreements, as the same may be modified by the Payment Processor from time to time. As a condition of Whym enabling payment processing service through the applicable Payment Processor, Merchant agrees to provide Whym accurate and complete information about Merchant and Merchant’s business and to promptly update such information as needed, and also authorizes Whym to share such information and transaction information related to Merchant’s use of the payment processing service provided by the applicable Payment Processor.  

3.3 Net of Taxes.  All amounts payable by Merchant to Whym hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, knowhow payments, customs, privilege, excise, sales, use, value added and Whym Wallet Platform taxes (collectively “Taxes”).  Merchant will be solely responsible for payment of any Taxes, except for those taxes based on the income of Whym.  Merchant will not withhold any Taxes from any amounts due Whym.

4. TERM; TERMINATION.

4.1 Term; Termination.  The term of this Agreement will commence on the Effective Date and will continue for successive one (1) month terms (each a “Subscription Term”) until terminated by either Party. Merchant may terminate this Agreement by canceling its subscription through its account on the Whym Wallet Platform at least 48 hours prior to the end of the current Subscription Term.  Following such cancellation by the Merchant, this Agreement will terminate at the end of the current Subscription Term. Whym may also terminate this Agreement by providing Merchant with thirty (30) days advance written notice of its desire to do so, following which the Agreement will terminate at the end of the Subscription Term in which such thirtieth (30th) day falls. In addition, a Party may terminate this Agreement immediately upon written notice to the other Party if (a) the other Party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof; or (b) avails itself of, or been subjected to by any third party, (i) a proceeding in bankruptcy in which such Party is the named debtor, (ii) an assignment by such Party for the benefit of its creditors, (iii) the appointment of a receiver for such Party, or (iv) any other proceeding involving insolvency or the protection of, or from, creditors, and the same has not been discharged or terminated without any prejudice to such Party’s rights or interests under this Agreement within sixty (60) days.  

4.2 Effect of Termination.  In the event that this Agreement expires or is terminated for any reason, all rights with respect to the Whym Wallet Platform will terminate at the end of the then current Subscription Term, and Merchant will (a) cease use of the Whym Wallet Platform; and (b) return to Whym or destroy, in Whym’ sole discretion, all copies or other embodiments of Whym’s Confidential Information.  

4.3 Survival.  Upon termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (License Restrictions and Merchant Responsibilities), 1.3 (License to Merchant Data), 1.4 (Feedback), 2 (Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Limitations of Liability), 8 (Indemnification) and 10 (General) will survive.  

5. CONFIDENTIALITY.

5.1 Definition of Confidential Information.  “Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a Party (the “Discloser”) to the other Party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof.  For the avoidance of doubt, the Whym Wallet Platform is Confidential Information of Whym.

5.2 Exceptions to Confidential Information.  Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.

5.3 Use and Disclosure of Confidential Information.  The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder.  The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.  The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.

5.4 Disclosures Required by Law.  In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.

6, REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

6.1 Representations and Warranties.  Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party, (c) such Party has all necessary rights and consents to grant the rights and licenses granted under this Agreement, (d) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties, and (e) such Party will comply with all Laws applicable to its business and its use of the Program Services.  Whym will use reasonable efforts consistent with prevailing industry standards to maintain the Whym Wallet Platform in a manner which minimizes errors and interruptions.  Notwithstanding the foregoing, the Whym Wallet Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Whym or by third-party providers, or because of other causes beyond Whym’s reasonable control, but Whym will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

6.2 Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE WHYM WALLET PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND WHYM DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  WHYM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF SEVERABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WHYM DOES NOT WARRANT THAT THE WHYM WALLET PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE WHYM WALLET PLATFORM WILL BE SECURE OR UNINTERRUPTED.      

7. LIMITATIONS OF LIABILITY.

7.1 Disclaimer of Consequential Damages.  EXCEPT FOR (A) MERCHANT’S BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.  

7.2 General Cap on Liability.  EXCEPT FOR (A) MERCHANT’S BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID TO WHYM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.  

7.3 Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

8. INDEMNIFICATION.

8.1 Indemnification by Whym.  Whym will indemnify, defend and hold Merchant and the officers, directors, agents, and employees of Merchant (“Merchant Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Merchant Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the Whym Wallet Platform infringes any United States copyright or misappropriates any United States trade secret (except for claims for which Whym is entitled to indemnification under Section 8.2, in which case Whym will have no indemnification obligations with respect to such claim). Whym will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Whym Wallet Platform by any party other than Whym; (b) the combination, operation, or use of the Whym Wallet Platform with other product(s), data or services where the Whym Wallet Platform would not by itself be infringing; or (c) unauthorized or improper use of the Whym Wallet Platform.  This Section 8.1 states Whym’ entire obligation and Merchant’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

8.2 Indemnification by Merchant.   Merchant will indemnify, defend and hold Whym and the officers, directors, agents, and employees of Whym (“Whym Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Whym Indemnified Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) any use by Merchant of the Whym Wallet Platform in violation of this Agreement, (b) the Consumer Relationship  and (c) the Merchant Data.

8.3 Action in Response to Potential Infringement.   If the use of the Whym Wallet Platform by Merchant has become, or in Whym’s opinion is likely to become, the subject of any claim of infringement, Whym may at its option and expense (a) procure for Merchant the right to continue using the Whym Wallet Platform as set forth hereunder; (b) replace or modify the Whym Wallet Platform to make it non-infringing so long as the Whym Wallet Platform has at least equivalent functionality; (c) substitute an equivalent for the Whym Wallet Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.

8.4 Indemnification Procedure. If a Merchant Indemnified Party or a Whym Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action.  The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing.  Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.

9. GOVERNMENT MATTERS. Merchant may not remove or export from the United States or allow the export or re-export of the Whym Wallet Platform, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Whym Wallet Platform (including the software, documentation and data related thereto) are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.


10. GENERAL.  The terms and conditions of this Agreement are severable.  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.  Neither Party may assign this Agreement without the other Party’s prior written consent; provided, that, either Party may assign this Agreement without such consent to an affiliate or to a successor to all or substantially all of the business or assets to which this Agreement relates, whether by sale of stock, sale of assets, merger, reorganization or otherwise.  Any assignment or attempted assignment by either Party in violation of the foregoing will be null and void.  Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns. Both Parties agree that this Agreement are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel 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 a Party does not have any authority of any kind to bind the other Party in any respect whatsoever.  All notices under this Agreement will be in writing and sent to the recipient’s address set forth above and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; 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.  Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, pandemics, fire, communication line failures, power failures, earthquakes, floods, blizzard or other natural disasters, or any mandatory order by the federal government or an applicable local government (but excluding failure caused by a Party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”).  Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event.  Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party.  This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions.  For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of  the state and federal courts located in Los Angeles County, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts.   Merchant acknowledges that any unauthorized use of the Whym Wallet Platform will cause irreparable harm and injury to Whym for which there is no adequate remedy at law.  In addition to all other remedies available under this Agreement, at law or in equity, Merchant further agrees that Whym will be entitled to injunctive relief in the event Merchant uses the Whym Wallet Platform in violation of the limited license granted herein or uses the Whym Wallet Platform in any way not expressly permitted by this Agreement.  In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.  Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.