Remote Checkout Network Master Services Agreement
Master Services Agreement
Last updated June 24, 2021
1.1 “Acceptable Use Policy” means Bolt’s acceptable use policy found at https://bolt.com/acceptable-use/.
1.2 “Affiliate” means a legal entity that controls, is controlled by, or is under common control with a party, where “control” is defined as owning more than 50% of the voting shares of such entity.
1.3 “Agreement” means this Master Services Agreement, each Order Form(s), each applicable Exhibit(s) and any other terms or agreements that are incorporated by reference herein.
1.4 “Authorized User” means an employee or contractor of Merchant or its Affiliates that Merchant has registered to access and use the Bolt Services.
1.5 “Bolt Account” means an End User’s Bolt account created by End User’s acceptance of the Bolt Account End User License Agreement.
1.6 “Bolt Account Data” means the data and information associated with an End User’s Bolt Account.
1.7 “Bolt Documentation” means Bolt-provided documentation and support pages relating to the Bolt Services, including the documentation found at: https://help.bolt.com/
1.8 “Bolt Services” collectively refers to Bolt’s web-based platform, application programming interface (“API(s)”), any other products or services offered by Bolt now or in the future (including, but not limited to, enabling Merchants to accept and process payments from End Users via credit card, debit card, and other alternative payment methods, Bolt checkout, Bolt SSO and Bolt fraud protection), the applicable documentation, and support pages, as each may be updated from time to time, and all intellectual property contained therein.
1.9 “Confidential Information” means any business or technical information disclosed by one party to the other party, including Merchant Data provided that it is identified as confidential at the time of disclosure or under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.
1.10 “End User” means a potential or active e-commerce consumer.
1.11 “Fees” means the fees specified on the applicable Order Form for the Bolt Services.
1.12 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction.
1.13 “Merchant Account” means Merchant’s account created via the Bolt Services.
1.14 “Merchant Data” means (i) the data and information input or uploaded into the Bolt Services by Merchant or Authorized Users, (ii) the End User’s personal and payment card information collected via the Bolt Services, and (iii) an End User’s Merchant specific account and the data and information associated with such account.
1.15 “Order Form” means the document Merchant uses to order the Bolt Services signed by Merchant and Bolt.
- BOLT SERVICES
2.1 Bolt Services. Merchant and its Authorized Users may access and use the Bolt Services solely for Merchant’s internal business purposes in accordance with the Agreement, the applicable Order Form(s), Exhibit(s) and Bolt Documentation. Bolt will use commercially reasonable efforts to make the Bolt Services available 24 hours a day, 7 days a week except for planned downtime and/or Force Majeure events.
2.2 Cooperation and Assistance. Merchant will cooperate with Bolt in good faith and provide to Bolt the information and personnel that Bolt reasonably requests and requires (i) to provide the Bolt Services and/or (ii) to launch the Bolt Services on Merchant’s website as provided in the applicable Order Form. Merchant, at its option, may utilize certain third-party software and services with the Bolt Services and is responsible for acquiring and maintaining all such third-party software and services required to access, use, or integrate with the Bolt Services, including all costs related to the foregoing.
2.3 Authorized Users. Merchant will keep its user IDs and password for the Bolt Services confidential and will be responsible for all actions taken under an Authorized User’s account. Merchant will comply with all applicable laws, rules and regulations in connection with its use of the Bolt Services. Merchant will promptly notify Bolt of any suspected violation of this Agreement by an Authorized User and will cooperate with Bolt to address the suspected violation. Bolt may suspend or terminate any Authorized User’s access to the Bolt Services upon notice to Merchant if Bolt reasonably determines that such Authorized User violated this Agreement.
2.4 Restrictions. Merchant will not allow anyone other than Authorized Users to access or use the Bolt Services from Merchant’s Account. Merchant will not and will ensure that its Authorized Users do not: (i) attempt to interfere with or disrupt the Bolt Services (or any related systems or networks) or use the Bolt Services other than directly for Merchant’s benefit; (ii) copy, modify or distribute any portion of the Bolt Services; (iii) rent, lease, or resell the Bolt Services; (iv) transfer any of its rights hereunder; (v) perform or attempt to perform any actions that would interfere with the normal operation, or prevent access to or use by other Bolt Services customers; (vi) violate the Acceptable Use Policy; or (vii) use in a manner that is not expressly permitted in this Agreement. In addition, Merchant will not reverse-engineer or access the Bolt Services to build a competitive product or service.
2.5 Merchant Data. Merchant is responsible for obtaining any necessary rights and licenses for the use of the Merchant Data by Merchant and Bolt as contemplated in this Agreement. Merchant agrees that it has the legal right and authority to access, use and disclose to Bolt any Merchant Data. Merchant authorizes Bolt to access, process, use and disclose the Merchant Data as necessary to perform and fulfill its obligations hereunder. The Bolt Services include functionality that permits Merchant to download certain Merchant Data as an archive file consisting of individual files in an industry standard data file format. In the unlikely scenario that any Merchant Data is lost or corrupted, Bolt will use commercially reasonable efforts to restore such Merchant Data. Merchant acknowledges that some Merchant Data may include Bolt Account Data, and such Bolt Account Data is owned by Bolt. Bolt will process and maintain Merchant Data consistent with its Data Processing Addendum (“DPA”), hereby incorporated by reference.
2.6 Information Security. Bolt will use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Bolt Services or Merchant Data. Bolt, however, will have no responsibility for errors in transmission, unauthorized third-party access or other acts or omissions beyond Bolt’s reasonable control.
2.7 Usage Data. Bolt may collect and analyze data and other information relating to the provision, use and performance of the Bolt Services and related systems and technologies therefrom (“Usage Data”) in order to improve and enhance the Bolt Services. Insights drawn from Usage Data may be disclosed to Merchant and other users of the Bolt Services in connection with their respective use of the Bolt Services. For the avoidance of doubt, if Bolt discloses insights drawn from Usage Data, then all Usage Data in such disclosures will be anonymized and aggregated, will not identify Merchant or a Merchant’s End Users, and will not be disclosed in a manner that would permit a third party to determine Merchant’s or Merchant’s End Users’ identity.
- MERCHANT OBLIGATIONS
3.1 Merchant Information Security Obligations. Merchant is fully responsible for the security of Merchant Data on Merchant’s website, through Merchant’s app, in connection with products or services Merchant provides, or otherwise in Merchant’s possession. Merchant will comply with all applicable state and federal laws and rules in connection with Merchant’s collection, security and dissemination of any personal, financial, or transaction information. Merchant specifically agrees that if Merchant has access to payment card information, Merchant will be compliant with the Payment Card Industry Data Security Standards (“PCI-DSS”), as applicable to this Agreement. Upon Bolt’s reasonable request, Merchant will confirm its PCI-DSS compliance. Merchant further agrees to cooperate with Bolt upon Bolt’s request in Bolt’s own compliance with PCI-DSS. In the event of a breach, or suspected breach, of Merchant’s information security systems, Merchant agrees to provide written notice within 48 hours of such breach or suspected breach to Bolt. If Bolt determines that a security breach occurred, Bolt may require Merchant, at Bolt’s expense, to have a third-party auditor that is approved by Merchant conduct a security audit of Merchant’s systems and facilities and issue a report to be provided to Bolt. Bolt shall provide thirty (30) days’ advance written notice of such audit, and such audits shall be conducted during normal business hours, not to interfere with Merchant’s business. Merchant further agrees to provide written notice to Bolt of any breaches, or suspected breaches, or Merchant’s information security systems that may have occurred within the two years prior to the Effective Date.
3.3 Change of Business. Merchant will give Bolt at least 30 days’ prior notification of Merchant’s intent to change Merchant’s current product or services types, Merchant’s trade name, or the manner or types of payments Merchant accepts, to the extent that such change materially changes the nature of the Merchant’s business. Merchant will provide Bolt with prompt notification if Merchant is the subject of (i) any voluntary or involuntary bankruptcy or insolvency petition or proceeding; (ii) any card network investigative action; (iii) a change of control of Merchant’s business; and/or (iv) litigation that may materially affect Merchant’s business.
- FEES; PAYMENT; TAXES
4.1 Fees. Merchant will pay to Bolt the Fees in accordance with the terms set forth in the applicable Order Form(s), or as otherwise detailed in Merchant’s Account, and this Section 4.
4.2 Payment. Unless otherwise set forth in an Order Form or within Merchant’s Account, Bolt will invoice Merchant for the Bolt Services on a monthly basis and each invoice will be due and payable within thirty (30) days of receipt by Merchant. If Merchant opts in to Bolt Fraud Protection Services, Fees will be offset by the value of Covered Transactions that accrued during the previous thirty (30) day period. All payment obligations are non-cancellable, and other than as provided in the Agreement, all amounts paid are non-refundable. Bolt will be entitled, in its sole discretion, to withhold performance and discontinue Merchant’s access to the Bolt Services until all undisputed amounts past due are paid in full. Any Fees that are past due under this Agreement are subject to interest as of the date after such Fees were due and payable and will continue to accrue interest until such payment is made at a rate equal to the lessor of either (a) 1.5% per month or (b) the maximum rate permitted by applicable law.
4.3 Taxes. All Fees and other amounts stated or referred to in this Agreement are exclusive of all taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Merchant will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Bolt’s net income.
- PROPRIETARY RIGHTS.
5.1 Merchant owns and retains: (i) the Merchant Data and (ii) Merchant’s name, logo and other trademarks, and (iii) all Intellectual Property Rights in and to any of the foregoing.
5.2 Bolt owns and retains: (i) the Bolt Services, and all improvements, enhancements or modifications made by any party; (ii) the Usage Data; (iii) Merchant feedback; (iv) Bolt Accounts and all Bolt Account Data; (v) any software, applications, inventions or other technology developed by Bolt in connection with providing the Bolt Services; (vi) Bolt’s name, logo, and other trademarks; and (vii) all Intellectual Property Rights in and to any of the foregoing.
- PAYMENT ACTIVITY
6.1 The Payment Processor. The Payment Processor is a third party service provider offering processing and settlement services for Merchant’s End User transactions under a separate agreement between Merchant and the Payment Processor (the “Payment Processor Terms”). The Payment Processor will be identified on the Order Form. By entering into this Agreement, Merchant agrees to be bound by the Payment Processor Terms which are a legal agreement between Merchant and the Payment Processor. Bolt is not a party to the Payment Processor Terms and is not liable to Merchant in respect thereof. Merchant’s use of the Bolt Services is conditioned on Merchant’s ongoing use of the Payment Processor identified on the Order Form. In the event that Merchant terminates, suspends or otherwise ceases to use Payment Processor’s services, Merchant shall notify Bolt immediately.
6.1 Authorization to Handle Funds. Merchant authorizes Bolt or their applicable payment processor, if any, to serve as a limited agent for the purpose of holding, receiving, and disbursing funds on Merchant’s behalf when such funds from Merchant’s card transactions settle from the applicable card networks, if any. Merchant further authorizes Bolt to instruct or otherwise access Merchant’s applicable payment processor account solely to the extent necessary and required for the Merchant to utilize the Bolt Services. The authorizations set forth in this section will remain in effect until Merchant’s Account is closed or terminated.
6.3 Taxes. Merchant will determine what, if any, taxes apply to the sale of Merchant’s products and services to End Users and the payments Merchant receives in connection with Merchant’s use of Bolt Services. It is solely the Merchant’s responsibility to assess, collect, report, or remit the correct taxes to the proper tax authority. Bolt and the Payment Processor are not obligated to determine whether taxes apply, calculate, collect, report, or remit any taxes to any tax authority arising from any transaction. Bolt or the Payment Processor may make certain reports to tax authorities regarding transactions that are processed via the Bolt Services. Merchant acknowledges that Bolt or the Payment Processor will report to the IRS the total amount of payments Merchant receives each calendar year as required by law, including without limitation on IRS Form 1099-K.
6.4 Transaction History. Information regarding Merchant’s transactions using the Bolt Services (“Transaction History”) will be available in Merchant’s Account. While Bolt will provide Transaction History in Merchant’s Account, Merchant is solely responsible for compiling and retaining permanent records of all transactions and other data associated with Merchant’s Account as may be required for Merchant’s business. Bolt reserves the right to provide Merchant’s Transaction History or other related Merchant Account activity to the Payment Processor if Bolt reasonably determines or suspects it is necessary due to (i) an unauthorized payment, (ii) Merchant received the payment for activities that violated this Agreement, (iii) pending disputes, (iv) excessive or anticipated excessive chargebacks pursuant to this Agreement, (v) other suspicious activity associated with Merchant’s use of the Bolt Services, or (vi) if required by law or court order.
6.5 Reconciliations and Errors. Merchant’s Transaction History is available when Merchant logs in to the Merchant Account. Invoices, if applicable, will be available on a monthly basis. Merchant is responsible for reconciling Merchant’s Transaction History with Merchant’s actual transactions, notifying Bolt of any errors or discrepancies in Merchant’s Transaction History (each an “Error”) arising from such reconciliation and verification. Bolt will investigate reported Errors and attempt to rectify any Errors that Merchant or Bolt discovers. If Merchant is owed money from Bolt as a result of an Error, Bolt will transfer funds to Merchant’s account in the next scheduled payout. While Bolt may still work with Merchant in its discretion to reconcile Errors, Merchant’s failure to notify Bolt of Errors within ninety (90) days of when an Error first appears on Merchant’s Transaction History will be deemed a waiver of any right to amounts that may be owed to Merchant in connection with any such Error, including any related charges. If Merchant submits or causes Bolt to process transactions erroneously, Merchant will notify Bolt immediately of the specifics of the Error and fully cooperate with Bolt in its resolution of that Error.
6.6 Returns. Merchant will seek reversals for End Users’ returns of Merchant’s products and services in accordance with the Payment Processor Terms, if applicable, this Agreement and any applicable law including any applicable card network rules. Bolt has no responsibility or obligation for processing such returns, or for responding to Merchant’s End Users’ inquiries about such returns.
6.7 Suspicion of Unauthorized or Illegal Use. Bolt reserves the right to not approve any transaction Merchant submits, which Bolt reasonably believes is in violation of this Agreement, or exposes Merchant, other Bolt merchants, End Users, the Payment Processor, or Bolt to harm or unnecessary risk, including but not limited to fraud, money laundering, tax evasion, and other criminal acts. Merchant grants Bolt authorization to share information with law enforcement about Merchant, Merchant’s Transaction History, or Merchant’s Account if Bolt reasonably suspects that Merchant’s use of the Bolt Services has been for an unauthorized, illegal, or criminal purpose.
7.1 Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary under this Agreement and will not disclose Confidential Information to any third party except: (a) to those of its employees and subcontractors who have a business need to know such Confidential Information; provided that each such employee and subcontractor is bound to confidentiality restrictions consistent with the terms set forth in this Agreement or (b) as further described in the Data Processing Addendum. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 7.1 will remain in effect during the Term and for a period of three (3) years after the expiration or termination thereof, except with regard to trade secrets of the disclosing party, which will be held in confidence for as long as such information remains a trade secret.
7.2 Exclusions. The obligations and restrictions set forth in Section 7.1 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without access to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
7.3 Permitted Disclosures. The provisions of this Section 7 will not restrict either party from disclosing the other party’s Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that to the extent legally permitted, the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request; (ii) on a confidential basis to its legal or professional financial advisors; or (iii) as required under applicable law.
7.4 Injunctive Relief. The receiving party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
- REPRESENTATIONS AND WARRANTIES – DISCLAIMER
8.1 Representations and Warranties. Merchant represents and warrants to Bolt that: (a) Merchant has the right, power, and ability to enter into and perform its obligations under this Agreement; (b) Merchant will not engage in any unfair, deceptive, or abusive acts or practices when utilizing the Bolt Services; (c) Merchant will comply with all federal, state, and local laws, rules, and regulations applicable to Merchant’s business, including any applicable tax laws, all applicable privacy laws and any applicable card network (including, but not limited to, Visa, Mastercard, Discover and American Express) imposed rules including the applicable PCI-DSS requirements applicable to this Agreement; (d) Merchant has obtained all necessary rights and consents under applicable law to disclose to Bolt and allow Bolt to collect, use, retain, and disclose any Merchant Data that Merchant provides to Bolt or authorizes Bolt to collect under this Agreement, including information that Bolt may collect directly from Merchant’s End Users via cookies or other means; and (e) Merchant will not use the Bolt Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner so as to interfere with the normal operation of the Bolt Services. Bolt represents and warrants to Merchant that: (i) Bolt shall comply with all federal, state and local laws, statutes, regulations, ordinances and privacy laws applicable to the performance of its obligations and the exercise of its rights under this Agreement, including but not limited to compliance with, and rules related to, PCI-DSS.
8.2 Warranty for Bolt Services. Bolt warrants solely to the Merchant that the Bolt Services will materially conform to the description set forth in this Agreement under normal use and circumstances when used consistently and in compliance with the terms of this Agreement. As Bolt’s sole and exclusive liability and Merchant’s sole and exclusive remedy for any breach of the warranty set forth in this Section 8.2 Bolt will use commercially reasonable efforts to modify the Bolt Services to correct the material non-conformity. In the event that Bolt is unable to correct the material non-conformity in a reasonable period, Merchant may terminate the Agreement and receive a pro rata refund for the period of non-conformity.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2, THE BOLT SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE BOLT SERVICES AND BOLT HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. BOLT DISCLAIMS ANY WARRANTY THAT THE BOLT SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BOLT OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Merchant assumes sole responsibility and liability for results obtained from the use of the Bolt Services and for conclusions drawn from such use. Bolt will have no liability for any claims, losses, or damages (i) caused by errors or omissions in any Merchant Data or other information provided to Bolt by Merchant in connection with the Bolt Services or any actions taken by Bolt at Merchant’s direction; (ii) arising out of or in connection with Merchant’s failure to fulfill its obligations found in Sections 3.1 & 3.2; (iii) arising out of or in connection with Merchant’s or any Authorized User’s use of any third-party products, services, software or websites that Merchant integrates with the Bolt Services; and/or (iv) arising out of or in connection with Merchant’s unauthorized modifications to the Bolt Services.
- TERM AND TERMINATION
9.1 Term. This Agreement will commence on the Effective Date listed in the Order Form and will continue for the period specified in the Order Form (the “Initial Term”), unless terminated earlier as provided in this Agreement. Thereafter, the Agreement shall automatically renew for subsequent one-year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”). If a party provides thirty (30) days’ advance written notice of its intent not to renew the Agreement, the Agreement shall expire at the end of the then-current Term. Bolt may modify the applicable Fees upon prior written notice to Merchant, provided that the modified fees will not apply until the next Renewal Term.
9.2 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party breaches any material term of this Agreement and fails to correct the breach within thirty (30) days following written notice from the non-breaching party specifying the breach. Bolt may terminate this Agreement immediately (i) if Merchant has experienced a material adverse change in its financial condition; (ii) if Merchant or any of Merchant’s officers or employees appear to have been involved in fraudulent or illegal activity; or (iii) Merchant’s activities may be reasonably considered to damage, injure, tarnish or otherwise negatively affect the reputation and goodwill of Bolt.
9.3 Early Termination Fee. In the event that Merchant terminates this Agreement during the Initial Term or a Renewal Term for any reason other than those identified in the Order Form, Merchant will be liable for an early termination fee. The early termination fee will be the Merchant’s average monthly Bolt Fee (calculated by averaging Merchant’s Bolt Fees from the three full calendar months immediately preceding Merchant’s notice of termination), multiplied by the number of months remaining in the then current Term (the “Early Termination Fee”). Merchant acknowledges that the actual damages likely to result from Merchant’s early termination are difficult to estimate as of the Effective Date of this Agreement and would be difficult for Bolt to prove. The Parties intend that Merchant’s payment of the Early Termination Fee to serve as liquidated damages and compensate Bolt for Merchant’s early termination of this Agreement, and they do not intend for such Early Termination Fee to serve as a penalty for any such early termination by Merchant. The Early Termination Fee is due to Bolt within fifteen (15) days of the termination effective date.
9.4 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Merchant’s and Authorized Users’ right to access and use the Bolt Services will immediately terminate and each will immediately cease all use of the Bolt Services (subject to Merchant’s rights to a Transition Period as described below, if applicable). In addition, upon expiration or termination, Merchant will (i) remove the Bolt Services integration from their website, including, but not limited to, all APIs (ii) discontinue use of any Bolt Marks or IP Rights licensed under this Agreement and immediately remove any Bolt references and logos from Merchant’s website or in Merchant’s app. Further, upon expiration or termination, Merchant understands and agrees that (i) the license granted under this Agreement immediately terminates, (ii) Bolt reserves the right to delete all of Merchant’s information and Merchant’s Bolt account data stored on Bolt’s servers, (iii) Bolt will not be liable to Merchant for compensation, reimbursement, or damages in connection with Merchant’s continued use of the Bolt Services after expiration or termination of this Agreement or deletion of Merchant’s information or account data, (iv) Merchant is still liable to Bolt for any fees or other amounts incurred by Merchant or through Merchant’s use of Bolt Services prior to expiration or termination, and (v) Merchant remains liable for any refunds and/or End User disputes initiated after the expiration or termination date.
9.5 Transition Period. If this Agreement expires or is terminated for any reason except a material breach by Merchant, Bolt will provide Merchant certain limited support and access to the Bolt Services after such expiration or termination; provided that Merchant continues to provide Bolt withdrawal and deposit access to Merchant’s accounts (the “Transition Period”). Merchant will have access to technical, general merchant and chargeback support, as well as refunds for 120 days following termination. Merchant will also have access to the Bolt Merchant Dashboard for up to one year from the termination date. Bolt may elect to continue to hold any funds, or seek an additional reserve, deemed necessary pending resolution of any other terms or obligations defined in this Agreement, including but not limited to Fees, refunds, or other investigations or proceedings. Any funds remaining in Bolt’s custody after resolution of pending claims will be paid out to Merchant subject to the terms of this Agreement.
9.6 Survival. The rights and obligations of Bolt and Merchant contained in Sections 2.7 (Usage Data), 4 (Fees; Expenses; Taxes), 5 (Proprietary Rights), 7 (Confidentiality), 9.4 (Rights and Obligations Upon Expiration or Termination), 9.5 (Transition Period), 9.6 (Survival), 10 (Indemnification), 11 (Limitation of Liability), and 12 (General) will survive any expiration or termination of this Agreement.
- MUTUAL INDEMNIFICATION
10.1 Indemnification by Bolt. Bolt will defend Merchant, its officers, directors and employees, from and against any suit or action brought by a third-party against Merchant: (a) resulting from unauthorized disclosure and misuse of Merchant Data directly resulting from Bolt’s breach of its obligations under Section 2.5 (Merchant Data); or (b) arising out of the gross negligence or intentional misconduct of Bolt’s employees, contractors or agents. Bolt shall indemnify and hold harmless Merchant from and against any damages and costs awarded against Merchant or agreed in settlement by Bolt (including reasonable attorneys’ fees) resulting from such claim, provided that: (i) Merchant provides Bolt with prompt written notice of such claim; (ii) Merchant provides reasonable cooperation to Bolt, at Bolt’s expense, in the defense and settlement of such claim; and (iii) Bolt has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes any material liability upon Merchant.
10.2 Indemnification by Merchant. Merchant will defend Bolt, its officers, directors and employees, from and against any suit or action brought by a third-party against Bolt: (a) arising out of the negligence or intentional misconduct of Merchant’s Authorized Users, employees, contractors or agents; (b) resulting from Merchant’s breach of any provision of this Agreement; or (c) arising out of Merchant’s use of the Bolt Services other than as permitted by this Agreement. Merchant will indemnify and hold harmless Bolt from and against any damages and costs awarded against Bolt or agreed in settlement by Merchant (including reasonable attorneys’ fees) resulting from such claim, provided that (i) Bolt provides Merchant with prompt written notice of such claim; (ii) Bolt provides reasonable cooperation to Merchant, at Merchant’s expense, in the defense and settlement of such claim; and (iii) Merchant has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes any material liability upon Bolt.
- LIMITATION OF LIABILITY.
11.1 TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER MERCHANT NOR BOLT, AND ITS AFFILIATES WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IN THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL BOLT’S LIABILITY TO MERCHANT UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY MERCHANT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST EVENT THAT GAVE RISE TO SUCH LIABILITY.
12.1 Governing Law. This Agreement will be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in San Francisco, CA. Bolt and Merchant hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding. Bolt and Merchant irrevocably waive any and all rights they may have to a jury trial in any judicial proceeding involving any claim relating to or arising under 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.
12.2 Order of Preference. In the event of a conflict between the MSA and Order Form, the order of preference will be the MSA, then the Order Form, unless the special contractual terms section of the Order Form clearly specifies the section of the MSA and/or Exhibit to be modified.
12.3 Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.
12.4 Notices. Notices will be sent to the addresses set forth in the Order Form. The notices will be deemed to have been given upon: (i) the date actually delivered in person; (ii) the day after the date sent by overnight courier; (iii) three (3) days following the date such notice was mailed by first class mail; or (iv) the same day sent by email to firstname.lastname@example.org. Notices may also be delivered via the Bolt Merchant Dashboard or via the email address associated with Merchant’s Account.
12.5 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
12.6 Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money owed) on account of events beyond the reasonable control of such party, which may include without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, pandemics, material shortages or internet connectivity failures.
12.7 Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties.
12.8 Assignment. Neither party may assign its rights or obligations under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other party’s consent, provided that: (a) the purchaser is not insolvent or otherwise unable to pay its debts as they become due; (b) the purchaser is not a competitor of the other party; and (c) any assignee is bound hereby. Other than the foregoing, any attempt by either party to transfer its rights or obligations under this Agreement will be void.
12.9 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
12.10 Notice of Changes. Bolt may update this MSA from time to time by providing Merchant with prior written notice of material updates at least thirty (30) days in advance of the effective date. Notice will be given via the Bolt Merchant Dashboard or via the email address associated with Merchant’s Account. The notice will highlight the intended updates. Except as otherwise specified by Bolt, updates will be effective upon the effective date indicated at the top of this MSA. The updated version of this MSA will supersede all prior versions. Following such notice, Merchant’s continued use of the Bolt Services on or after the effective date of the updates to this MSA constitutes Merchant’s acceptance of any updates.
12.11 Marketing Activities. Each party may identify the other party as a customer including, but not limited to, use of the other party’s name and logo on its website, customer lists and similar marketing materials. Neither party may issue a press release relating to this Agreement without the other party’s prior written consent.
12.12 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.