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 the 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 the 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, during the Term, a limited, revocable, 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 Permitted Purpose.  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) “mirror” the contents of the Site though the use of HTML frames or other means to display such content on another website or document; (iv) use the Whym Wallet Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (v) 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 continental United States (excluding Puerto Rico and all other 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, Apple Pay or Google Pay (each 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) adhering to the opt-in SMS messaging preferences its consumers elect within the Whym platform, (iIi) marketing of the Products, (iv) manufacturing, fulfillment, distribution and shipping of the Products, (v) the communication of transaction receipts, any applicable policy for order cancellation, refund, exchange, and returns, and any other information required by law or applicable payment network rules to be disclosed to consumer; (vi) all order cancellation, return, refund and exchange requests, (vii) all payment disputes and consumer reports of billing errors; and (vii) all customer services requests (the “Consumer Relationship”).  Merchant is also solely responsible for (i) securing and maintaining any governmental licenses or permits for the sale of any Products that are offered through the Whym Wallet Platform, and (ii) for ensuring that all such Product sales and deliveries are in compliance with applicable law, including compliance with any restrictions related to the consumer’s age or location.  

1.3 License to Merchant Data and Marks.  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, (ii) to improve its products, services, and business operations; and (iii) to derive anonymous statistical and usage data, and data related to Merchant’s use of the Whym Wallet Platform, provided such data cannot be used to identify Merchant or its consumers (“Anonymous Data”). Whym may 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”), and use such Aggregate Data for (i) improving Whym’s existing products, services, and business operations, (ii) for developing new Whym products and services, (iii) for marketing purposes (e.g., indicating the number of customers using certain Whym services), and (iv) for any other legally permissible business purpose. Merchant hereby also grants to Whym a limited, non-exclusive, non-transferable, sublicenseable license to use Merchant’s logo, trademarks, trade names, service marks or trade dress, and the like (collectively “Merchant Marks”) solely in connection with displaying such Merchant Marks in the Whym Wallet Platform for the sale of Merchant’s Products.

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 shall have the full right and license to use the Feedback for improvements to the Whym Wallet Platform, the Site, Whym’s products and services, business operations or for any other legally permissible business purpose. Any such alterations, changes, modifications, enhancements, additions, restructuring or deletions made to, or derivatives of or other products derived from, or as a result of any such Feedback shall be the sole and exclusive property of Whym, together with all intellectual property and other rights therein

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, the Anonymous Data and the Aggregate Data 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, and subject to Section 1.3, 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 or a flat fee for each sale that is processed through the Whym Wallet Platform or (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 Merchant’s 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. (“Stripe”), Apple Inc. (“Apple Pay”) and Google LLC (“Google Pay”, 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 Payment Processors will be 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”). Specifically, Merchant’s use of (i) the 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, (ii) Apple Pay is subject to the Apple Pay Platform Web Merchant Terms and Conditions, and (iii) Google Pay is subject to the Google Pay API Terms of Service. As a condition to using the Payment Processor 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”, and collectively the “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.   Whym may immediately suspend Merchant’s access to the Whym Wallet Platform or terminate this Agreement immediately with notice to Merchant, if Whym determines, its sole discretion, that the Merchant’s use of the Whym Wallet Platform or its sale of any Products is violative of applicable law.

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 identified as confidential or proprietary, or (b) the Recipient reasonably should have known was the Confidential Information of the Discloser based on the content and circumstances of the disclosure; 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 a contemporaneous 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 under this Agreement.  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 commercially 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 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. Merchant hereby represents and warrants that (i) the Merchant Data does not violate any third-party’s intellectual property rights, (ii) Merchant has received all necessary governmental approvals, licenses and certificates required for the sale and delivery of Products to consumers, and (iii) Merchant’s use of the Whym Wallet Platform and its sale of any Products is not violative of applicable law.

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, OR FOR 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) MERCHANT’S PAYMENT OBLIGATIONS UNDER SECTION 3.2 (FEES), (C) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE AND (D) 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, its affiliates and their respective officers, directors, agents, and employees (“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, (c) Merchant’s breach of any of its representations or warranties in Section 6.1, 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 without any further liability to Whym.

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.