Subscription Agreement

Gratify Subscription Agreement

This Master Services Agreement (“Agreement”) sets forth the legally binding terms governing Customer’s use of the Services and the execution of Order Forms (each as defined below). This Agreement is entered into by and between Gratify Payments Inc. (“Gratify”) and the company or entity on whose behalf you are accepting this Agreement (“Customer”).

By accessing or using the Services, or by executing an Order Form that references this Agreement, Customer agrees to be legally bound by its terms and conditions. You represent and warrant that you have the authority to bind Customer to this Agreement. If Customer does not agree to any provision of this Agreement, Customer must not access or use the Services, nor execute any Order Form that references this Agreement.

The effective date of this Agreement shall be the date set forth in an applicable Order Form, or, if no Order Form applies, the date on which Customer first accesses or uses the Services (the “Effective Date”).

This Agreement governs Customer’s subscription to Gratify’s Services, as well as any related professional services, including but not limited to setup, integration, and implementation services, as specified in an Order Form.

Gratify and Customer may be referred to individually as a “Party” and collectively as the “Parties.” Certain capitalized terms used in this Agreement are defined in Section 12.

The Parties agree as follows:

1. 1. General

1. 1.1 Provision of Service. Gratify shall make the Services available to Customer during the Subscription Term specified in the applicable Order Form. Subject to the terms of this Agreement, Gratify grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely for Customer’s internal business operations, in accordance with this Agreement, the applicable Order Form, and the Documentation.
2. Gratify may enhance or modify the Services from time to time, provided that such modifications do not materially alter the core functionality or intended purpose of the Services as described in the applicable Order Form.

2. 1.2 Access and Use. Subject to the terms of this Agreement and the applicable Order Form, Customer’s right to use the Services includes access to and use of the associated Documentation solely as necessary to support its authorized use of the Services.
3. Customer shall not, directly or indirectly:

1. (a) modify, copy, or create derivative works of the Services or Deliverables;

2. (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying ideas or algorithms of the Services or Deliverables, except to the extent expressly permitted by law;

3. (c) rent, lease, sell, sublicense, assign, distribute, or otherwise make the Services available to third parties, except as expressly permitted in an Order Form;

4. (d) use the Services to provide time-sharing, outsourcing, or service bureau offerings to third parties;

5. (e) remove, alter, or obscure any proprietary notices within the Services or Documentation;

6. (f) interfere with or disrupt the integrity, security, or performance of the Services;

7. (g) attempt to gain unauthorized access to the Services or related systems; or

8. (h) use the Services in any manner that violates applicable laws, regulations, or industry standards.
9. Except for the limited rights expressly granted to Customer in this Agreement, Gratify reserves all rights, title, and interest in and to the Services, including all intellectual property rights therein. No rights are granted to Customer other than as expressly set forth in this Agreement.

3. 1.3 Service Availability and Support. Gratify will use commercially reasonable efforts to make the Services available. However, Customer acknowledges that:

1. (a) the Services may be temporarily unavailable due to maintenance, system upgrades, or unforeseen technical issues; and

2. (b) Gratify does not guarantee uninterrupted, error-free operation of the Services.
3. Subject to Customer’s payment of all applicable Fees, Gratify shall provide Support Services as set forth in the applicable Order Form. Support Services shall be provided only to Customer’s designated administrators, and Gratify shall have no obligation to provide direct support to Customer’s Users unless otherwise stated in an Order Form.
4. 1.4 Order Forms and Affiliate Usage
5. Gratify, Customer, and their respective Affiliates may place orders under this Agreement by executing Order Forms. Each executed Order Form shall be deemed incorporated into and governed by this Agreement.
6. Customer and its Affiliates may utilize the Services as follows:

1. (a) If Customer and its Affiliates share a single Order Form, any usage limitations set forth in the Order Form apply collectively across all such entities, and the total usage may not exceed the stated limits;

2. (b) If an Affiliate executes a separate Order Form, that Affiliate’s usage limitations shall be governed independently by the terms of its own Order Form;

3. (c) Customer remains fully responsible for all actions and omissions of its Affiliates as if they were its own; and

4. (d) If Customer purchases an unlimited-use subscription, such rights shall extend only to those Affiliates expressly specified in the applicable Order Form.

2. 2. Use Guidelines

1. 2.1 Restrictions. Customer shall use the Services solely for its internal business purposes in accordance with this Agreement and any related Order Form. Except as expressly permitted by this Agreement, Customer shall not, directly or indirectly:

1. (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share, operate as a service bureau or managed service, or otherwise commercially exploit or make the Services available to any third party;

2. (b) modify, adapt, alter, translate, or create derivative works of the Services or Deliverables;

3. (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying ideas or algorithms of the Services or Deliverables;

4. (d) take any action that would cause the Services or Deliverables (including any license key) to be placed in the public domain;

5. (e) remove, alter, or obscure any proprietary notices of Gratify, its licensors, or suppliers included in the Services or Deliverables;

6. (f) use the Services or Deliverables to send, store, or distribute Malicious Code or any material that is infringing, obscene, threatening, harmful, illegal, fraudulent, abusive, defamatory, or otherwise unlawful or tortious, or use the Services for sending spam or other unauthorized messages;

7. (g) interfere with or disrupt the integrity, security, or performance of the Services, or any equipment or networks connected to the Services, or violate any usage restrictions communicated by Gratify;

8. (h) attempt to gain unauthorized access to the Services or related systems or networks, collect or transmit data in an unauthorized manner, or distribute software that covertly gathers or transmits information about users;

9. (i) circumvent, disable, or interfere with security-related features of the Services or Deliverables, or features that enforce limitations on their use;

10. (j) access the Services or Deliverables for the purpose of developing, marketing, or distributing a competitive product or service, or copying their features, functionality, or user interface;

11. (k) send or store any personal health information or any data regulated under the Health Insurance Portability and Accountability Act (HIPAA);

12. (l) use the Services to submit, process, or store Merchant Data in a manner that violates applicable data protection laws; or

13. (m) engage in any conduct that violates applicable laws, regulations, codes, or industry standards.

2. 2.2 Rate Limiting & Usage Restrictions
3. Gratify reserves the right to implement rate limiting, throttling, or other usage restrictions if Customer’s usage materially impacts the performance, stability, or availability of the Services for other customers. Such limitations may be applied based on factors such as the number of API requests, transactions processed, concurrent connections, or data volume transmitted within a given time period.
4. If Gratify applies any such limitations, it will notify Customer promptly and work in good faith with Customer to reach a mutually agreeable resolution, including, if applicable, options for increasing usage capacity through an add-on purchase.
5. Gratify reserves the right to monitor and audit Customer’s use of the Services to ensure compliance with this Agreement.

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3. 2.3 Customer Responsibilities Customer is responsible for:

1. (a) the accuracy, quality, legality, reliability, and appropriateness of all Customer Data, including Merchant Data, submitted by Customer or its Users to the Services;

2. (b) identifying, authenticating, and managing all Users with access to the Services and ensuring their compliance with this Agreement;

3. (c) maintaining the confidentiality of usernames, passwords, and account information, and promptly notifying Gratify of any unauthorized access or security breach;

4. (d) all activities that occur under its Users’ accounts, regardless of whether such actions were authorized; and

5. (e) ensuring that its Users comply with this Agreement and taking prompt action to terminate access for any User violating these terms.
6. If Customer becomes aware of any violations of this Agreement by its Users, it shall promptly notify Gratify and cooperate in addressing the issue.
7. Gratify reserves the right, but not the obligation, to remove or request removal of any Customer Data that it reasonably believes is unlawful, harmful to the Services, or subject to legal claims. Upon receipt of a request from Gratify to remove specific Customer Data that is unlawful or harmful to the Services, Customer shall promptly remove such data or cooperate with Gratify to remediate the issue.
8. Customer shall comply with any applicable security guidelines set forth in the Documentation.

4. 2.4 Compliance with Laws. Each Party shall comply with all applicable local, state, national, and international laws related to its obligations under this Agreement.

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5. 2.5 Suspension of Service for Critical Cause. Gratify reserves the right to suspend or terminate Customer’s access to the Services under the following circumstances:

1. (a) Non-Payment – If Customer fails to pay any undisputed Fees when due and remains delinquent for more than 30 days following written notice;

2. (b) Legal Compliance – If suspension is required to comply with a legal obligation or government request; or

3. (c) Security or Abuse Concerns – If Gratify determines that Customer’s use of the Services poses material security risks, involves fraudulent or abusive activity, or violates this Agreement.
4. Where reasonably possible, Gratify will provide advance notice before suspending Services. Gratify will restore access as soon as the underlying issue is resolved. No credits or remedies shall apply to any suspension made under this section.

3. 3. Fees & Payment

1. 3.1 Fees. Customer shall pay all Fees specified in any applicable Order Form. Fees are based on the scope of the subscription purchased and not actual usage. Except as expressly set forth in an applicable Order Form, payment obligations are non-cancelable, and all Fees are non-refundable.
2. Gratify offers a subscription-based licensing model, under which Customer purchases an annual subscription to access the Services. The subscription fee is payable annually in advance and includes a prepaid allotment of transactions, as specified in the Order Form.
3. Each 12-month period within the Subscription Term includes a prepaid allotment of transactions as specified in the Order Form. Unused transactions do not roll over beyond the 12-month period in which they were allocated, regardless of whether the Subscription Term extends beyond 12 months. If Customer’s transaction volume exceeds the prepaid allotment during any 12-month period, Overage Charges will apply, invoiced and payable monthly in arrears at the per-transaction rate specified in the Order Form.
4. Customer’s purchase of the Services is not contingent on any future functionality or features, nor dependent on any oral or written public comments made by Gratify regarding future enhancements.

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2. 3.2 Invoicing & Payment Terms. All Fees will be invoiced in advance in accordance with the applicable Order Form, except for Overage Charges, which will be invoiced monthly in arrears. Unless otherwise stated in an Order Form, payments are due net thirty (30) days from the invoice date.
3. Customer is responsible for maintaining accurate billing and contact information and ensuring timely payment.

3. 3.3 Renewal. Each Order Form shall automatically renew for a Renewal Term equal to the initial Subscription Term, unless either Party provides written notice of non-renewal at least ninety (90) days prior to the renewal date.
4. Gratify may adjust the Fees for any Renewal Term to reflect increases in operational costs, inflation, or market conditions. Gratify shall provide at least 30 days’ prior written notice of any such increase.

4. 3.4 Expenses. Customer shall reimburse Gratify for all pre-approved travel and related expenses incurred in performing Professional Services.

5. 3.5 Overdue Payments. If Customer fails to make a payment when due, and such failure continues for five (5) days after written notice, Gratify may:

1. (a) charge late fees at a rate of 1.5% per month (or the maximum rate permitted by law, whichever is lower) on the overdue amount;

2. (b) suspend access to the Services until payment is received; and

3. (c) recover all reasonable costs of collection, including attorney’s fees.

6. 3.6 Taxes. Customer is responsible for paying or self-assessing all applicable local, state, federal, or foreign taxes, levies, duties, tariffs, or similar governmental assessments related to its purchases under this Agreement, excluding taxes on Gratify’s net income, corporate profits, or property.
7. All Fees are exclusive of Taxes and Gratify will not include Taxes in its invoices.
8. Customer is solely responsible for determining, reporting, and remitting any applicable Taxes to the appropriate taxing authorities.
9. If any amounts payable by Customer are subject to withholding taxes, Customer shall gross up the payment so that the net amount received by Gratify equals the full amount invoiced.

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4. 4. Confidentiality

1. 4.1 Confidential Information. Each Party agrees to maintain the confidentiality of all Confidential Information disclosed to it by the other Party and to use such information only as necessary to perform its obligations under this Agreement.
2. Confidential Information includes, but is not limited to, business plans, technical data, trade secrets, financial information, product designs, and any non-public information disclosed by one Party to the other, whether in written, electronic, or oral form, and whether marked as confidential or not.
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2. 4.2 Obligations of Confidentiality. Each Party shall:

1. (a) protect the other Party’s Confidential Information with the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable standard of care;

2. (b) not use the other Party’s Confidential Information for any purpose other than fulfilling its obligations under this Agreement;

3. (c) restrict disclosure of Confidential Information to its Affiliates, service providers, and subcontractors on a need-to-know basis, ensuring such entities use the information solely for fulfilling the Receiving Party’s obligations under this Agreement;

4. (d) be liable for any unauthorized disclosure or misuse of Confidential Information by its Affiliates, service providers, or subcontractors;

5. (e) promptly notify the Disclosing Party upon discovery of any unauthorized access, disclosure, or use of Confidential Information and reasonably cooperate in remediation efforts.

3. 4.3 Exclusions. Confidential Information does not include information that:

1. (a) is or becomes publicly available without breach of this Agreement;

2. (b)is lawfully received from a third party without restriction;

3. (c) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or

4. (d) is approved for release by the Disclosing Party in writing.

4. 4.4 Security Measures. Each Party shall implement and maintain commercially reasonable administrative, physical, and technical safeguards to protect Confidential Information from unauthorized access, disclosure, or use.

5. 4.5 Required Disclosure. If a Party is required by law, regulation, or court order to disclose Confidential Information, it shall provide the Disclosing Party with prior written notice (to the extent legally permitted) and shall cooperate in seeking confidential treatment or a protective order. The Receiving Party shall disclose only the minimum Confidential Information necessary to comply with such legal requirement.

6. 4.6 Return or Retention of Confidential Information. Upon termination of this Agreement, each Party shall, at the Disclosing Party’s request, erase, delete, or destroy all copies of Confidential Information in its possession and certify such destruction in writing.
7. However, a Party may retain copies that are:

1. (a) required by law,

2. (b) retained under internal document retention policies, or

3. (c) technically incapable of being destroyed, provided that all such copies remain subject to the confidentiality obligations herein.

7. 4.7 Equitable Relief and Remedies for Breach. Each Party acknowledges that any unauthorized use or disclosure of Confidential Information may cause irreparable harm to the Disclosing Party, for which monetary damages may be inadequate. In such cases, the Disclosing Party shall be entitled to seek injunctive relief in addition to any other remedies available under law.

8. 4.8 Survival. The obligations of confidentiality shall survive for a period of five (5) years following termination of this Agreement. With respect to trade secrets, confidentiality obligations shall survive for as long as such information remains a trade secret under applicable law.

5. 5. Intellectual Property & Data Rights

1. 5.1 Ownership of Services. Gratify (or its licensors) retains all rights, title, and interest in and to the Services, including but not limited to all software, technology, Documentation, proprietary methods, trademarks, trade secrets, and all intellectual property rights therein.  
   Except for the limited rights expressly granted to Customer in Section 1, no other licenses or rights are granted, whether by implication, estoppel, or otherwise.

2. 5.2 Customer Data & Merchant Data  

1. (a) Ownership – As between the Parties, Customer retains all rights, title, and interest in and to Customer Data, including Merchant Data. Gratify does not claim ownership of Customer Data.

2. (b) License to Provide the Services – Customer grants Gratify a limited, non-exclusive, worldwide, royalty-free license to process, store, and use Customer Data solely as necessary to provide the Services in accordance with this Agreement.

3. (c) Restrictions – Gratify shall not:

1. i. Sell, rent, or share Customer Data with third parties for marketing purposes.

2. ii. Access Customer Data except as required to provide the Services, ensure compliance with this Agreement, or comply with legal requirements.

3. 5.3 Data Security & Protection. Gratify shall implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect Customer Data, including Merchant Data, against unauthorized access, disclosure, or loss.  
   If Gratify becomes aware of a Security Incident affecting Customer Data, it shall:

1. (a) notify Customer without undue delay;

2. (b) investigate and remediate the issue; and

3. (c) provide reasonable cooperation to Customer as required by law.

4. 5.4 Data Retention & Deletion.

1. (a) Retention During the Subscription Term – Gratify shall retain Customer Data during the Subscription Term to provide the Services and fulfill its contractual obligations.

2. (b) Deletion Upon Termination – Upon termination or expiration of this Agreement, Gratify shall delete all Customer Data from its systems within sixty (60) days, unless retention is required for:

1. i. Compliance with legal, regulatory, or contractual obligations;

2. ii. Resolving disputes or enforcing Gratify’s rights under this Agreement; or

3. iii. Backup retention per Gratify’s internal data retention policies, provided that such data remains protected and inaccessible for active use.

3. (c) Customer Responsibility for Data Backup – Customer is responsible for maintaining backup copies of Customer Data and Merchant Data before termination. Gratify shall not be liable for any loss of Customer Data after the 60-day retention period expires.

5. 5.5 Feedback & Usage Data  

1. (a) Feedback License – If Customer provides any feedback, suggestions, or recommendations regarding the Services, Gratify may use such feedback without obligation or compensation to Customer.

2. (b) Usage Data – Gratify may collect and analyze usage data related to the Services for internal business purposes, such as improving performance, enhancing security, and developing new features.

6. 6. Professional Services

1. 6.1 Scope of Professional Services. If specified in an Order Form, Gratify may provide Professional Services, which may include implementation, configuration, integration, training, consulting, or other mutually agreed services. Professional Services are separate from the standard Services and do not include software customization, feature development, or modifications to the Services unless expressly stated in an Order Form

2. 6.2 Fees & Payment. Professional Services are subject to separate Fees, as specified in the applicable Order Form. Unless otherwise stated in an Order Form, Professional Services Fees:

1. (a) Are invoiced separately from standard subscription fees,

2. (b) Are non-cancelable and non-refundable,  

3. (c) May be charged on a fixed-fee or time-and-materials basis, and  

4. (d) Are due within the payment terms set forth in Section 3 (Fees & Payment Terms).
5. Customer shall also reimburse any pre-approved expenses incurred by Gratify in connection with the Professional Services, including reasonable travel, lodging, and out-of-pocket costs.

3. 6.3 Expiration of Unused Professional Services. Any Professional Services purchased but not utilized within twelve (12) months of the purchase date shall be considered delivered and fully earned, and Customer shall not be entitled to any refund, credit, or extension beyond this period.

4. 6.4 Deliverables & Intellectual Property.  

1. (a) Ownership of Deliverables – Any work product, reports, scripts, or materials (collectively, “Deliverables”) created by Gratify in the course of performing Professional Services shall be owned exclusively by Gratify, unless otherwise stated in an Order Form.

2. (b) License to Customer – Subject to the terms of this Agreement, Gratify grants Customer a limited, non-transferable, non-sublicensable, non-exclusive license under Gratify’s intellectual property rights in the Deliverables to use and reproduce the Deliverables solely for Customer’s internal business use in conjunction with Customer’s authorized use of the Gratify Products. This license remains valid only while Customer is authorized to use the Gratify Products pursuant to an active Order Form.

3. (c) Perpetual License for Certain Deliverables – Notwithstanding the foregoing, Gratify grants Customer a perpetual, worldwide, and non-transferable license to copy, use, modify, or reuse any intellectual property embodied in documents or works of authorship delivered to Customer via the Professional Services, provided that such materials are not software, code, or proprietary technology owned by Gratify.

4. (d) Pre-Existing IP & Tools – Each Party retains ownership of any intellectual property, proprietary tools, methods, or software it owned prior to or independently of this Agreement. If any Gratify pre-existing intellectual property is incorporated into a Deliverable, Customer receives a non-exclusive, limited license to use such IP as necessary to benefit from the Professional Services.

5. 6.5 Customer Responsibilities. To enable Gratify to perform Professional Services, Customer shall:  

1. (a) Provide Access & Resources – Ensure Gratify has timely access to Customer personnel, systems, data, and technical resources required for the Professional Services;  

2. (b) Ensure Data & Input Accuracy – Provide accurate, complete, and timely information necessary for the performance of the Professional Services;  

3. (c) Maintain System Readiness – Ensure that any third-party systems, environments, or dependencies that Gratify must interact with are properly configured and available;  

4. (d) Adhere to Project Schedules – Comply with agreed project schedules. Delays caused by Customer’s failure to meet obligations may result in timeline adjustments, additional costs, or project re-scoping; and  

5. (e) Obtain Necessary Consents – Secure all necessary rights, permissions, and approvals for Gratify to access and use any Customer Data, Merchant Data, or third-party systems as required to perform the Professional Services.

6. 6.6 No Guarantee of Results.

1. (a) No Warranty on Outcomes – Gratify makes no guarantees that Professional Services will result in specific business outcomes, operational improvements, or revenue increases. Customer acknowledges that the effectiveness of Professional Services depends on multiple factors beyond Gratify’s control, including Customer’s implementation, technical environment, and adherence to recommendations.

2. (b) No Custom Development – Unless explicitly agreed in an Order Form, Professional Services do not include product development, software modifications, or feature customization. Any such work requires a separate agreement.

7. 6.7 Change Requests & Scope Adjustments.

1. (a) Customer-Initiated Changes – If Customer requests changes to the scope of Professional Services, such changes must be agreed in writing, and any additional work, fees, or adjustments to the timeline shall be documented in a written change order.

2. (b) Gratify-Initiated Changes – If Gratify determines that modifications to the original scope are necessary due to unforeseen complexities, Customer’s delays, or third-party dependencies, Gratify shall notify Customer and seek approval before proceeding.

3. (c) Effect of Scope Changes – Any approved change orders may result in additional fees, timeline extensions, or modifications to deliverables.

8. 6.8 Termination of Professional Services.

1. (a) Termination by Customer – Customer may terminate Professional Services upon thirty (30) days’ prior written notice, provided that Customer shall remain responsible for all fees incurred for work performed through the effective termination date. Any prepaid amounts shall be non-refundable, unless otherwise stated in an Order Form.

2. (b) Termination by Gratify – Gratify may suspend or terminate Professional Services if Customer fails to fulfill its obligations, causes excessive delays, or violates this Agreement, upon written notice.

3. (c) Effect of Termination – Upon termination of Professional Services, Customer’s license to use Deliverables (if applicable) shall continue in accordance with Section 6.4(b). However, Gratify shall have no further obligation to provide additional work, support, or modifications beyond the termination date.
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5. 7. Warranties & Disclaimers
6. 7.1 Mutual Warranties
7. Each Party represents and warrants that:
8. (a) it has the full legal right, power, and authority to enter into and perform its obligations under this Agreement;
9. (b) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms;
10. (c) no authorization, consent, or approval from any other person or entity is required for such Party to execute, deliver, or perform its obligations under this Agreement
11. (d) its execution, delivery, and performance of this Agreement will not violate the terms of any other agreement to which it is bound; and
12. (e) it will comply with all applicable Laws and Regulations in connection with its obligations under this Agreement.

2. 7.2 Gratify Warranties. Gratify warrants that:

1. (a) the Services will perform materially in accordance with the Documentation under normal use and circumstances;

2. (b) it will provide the Services in a professional and workmanlike manner consistent with industry standards; and

3. (c) it has implemented commercially reasonable security measures to protect Customer Data from unauthorized access.
4. THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES PROVIDED BY GRATIFY AND SHALL APPLY ONLY DURING THE SUBSCRIPTION TERM.

3. 7.3 Customer Warranties. Customer warrants that:

1. (a) it will use the Services solely in accordance with applicable Laws and Regulations, including Data Protection Laws;

2. (b) it will not introduce Malicious Code, Viruses, or other Harmful Code into the Services or Gratify’s systems; and

3. (c) it is responsible for ensuring that its Users and Affiliates comply with the terms of this Agreement.

4. 7.4 Disclaimers.

1. (a) THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTIES OF ANY KIND. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, GRATIFY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ERROR-FREE OPERATION. GRATIFY DOES NOT GUARANTEE THAT THE SERVICES WILL MEET CUSTOMER’S SPECIFIC BUSINESS REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

2. (b) GRATIFY MAKES NO WARRANTY THAT THE SERVICES WILL BE COMPATIBLE WITH CUSTOMER’S SYSTEMS, HARDWARE, OR THIRD-PARTY SOFTWARE, OR THAT DATA TRANSMITTED OR STORED VIA THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, OR SECURITY BREACHES.

3. (c) GRATIFY EXPRESSLY DISCLAIMS ANY WARRANTIES RELATING TO THE PERFORMANCE OF PROFESSIONAL SERVICES OR ANY DELIVERABLES PROVIDED IN CONNECTION THEREWITH.

4. (d) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GRATIFY, ITS EMPLOYEES, RESELLERS, OR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR EXPAND THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.

5. (e) GRATIFY MAKES NO WARRANTY REGARDING ANY THIRD-PARTY SERVICES, SOFTWARE, OR SYSTEMS WITH WHICH THE SERVICES MAY INTEROPERATE. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH THIRD-PARTY SERVICES, AND GRATIFY SHALL HAVE NO LIABILITY FOR ANY ISSUES ARISING FROM SUCH USE.

8. 8. Indemnification

1. 8.1 Indemnification by Gratify. Gratify shall defend Customer, its Affiliates, and their respective officers, directors, and employees (collectively, “Customer Indemnitees”) from and against any third-party claim, demand, lawsuit, or legal action (a “Claim”) alleging that the Services, as provided by Gratify and used by Customer in accordance with this Agreement, infringe any third party’s intellectual property rights.
2. Gratify shall indemnify and hold Customer Indemnitees harmless from any damages, settlements, costs, and reasonable attorneys’ fees awarded or agreed to in connection with such Claim. Gratify’s obligations under this Section 8.1 shall not apply if the alleged infringement arises from:

1. (a) Customer’s misuse of the Services, including any violation of this Agreement;

2. (b) Customer’s modifications to the Services that were not authorized by Gratify;

3. (c) Customer’s use of the Services in combination with third-party software, systems, or data, where the infringement would not have occurred but for such combination;

4. (d) any Third-Party Services or content provided by Customer or its Users; or

5. (e) Customer’s continued use of an outdated version of the Services after Gratify has made a newer, non-infringing version available.
6. If a Claim is made or, in Gratify’s reasonable opinion, is likely to be made, Gratify may, at its discretion:

1. i. obtain the right for Customer to continue using the Services;

2. ii. modify or replace the Services to make them non-infringing; or

3. iii. terminate the affected Services and refund Customer any prepaid, unused Fees for the remainder of the Subscription Term.
4. THIS SECTION 8.1 STATES GRATIFY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. GRATIFY’S LIABILITY UNDER THIS SECTION IS SUBJECT TO SECTION 9 (LIMITATION OF LIABILITY).

2. 8.2 Indemnification by Customer. Customer shall defend Gratify, its Affiliates, and their respective officers, directors, and employees (collectively, “Gratify Indemnitees”) from and against any third-party Claim arising out of or relating to:

1. (a) Customer Data, including any claim that Customer Data (i) infringes or misappropriates a third party’s intellectual property rights, or (ii) violates applicable Data Protection Laws;

2. (b) Customer’s or its Users’ use of the Services in a manner that violates this Agreement or applicable Laws and Regulations;

3. (c) Customer’s business practices, products, or services; or

4. (d) any claims brought by Merchants, Users, or third parties arising from Customer’s use of the Services.
5. Customer shall indemnify and hold Gratify Indemnitees harmless from any damages, settlements, costs, and reasonable attorneys’ fees awarded or agreed to in connection with such Claim.

3. 8.3 Indemnification Process. The Party seeking indemnification (the “Indemnified Party”) must:

1. (a) provide prompt written notice of the Claim to the indemnifying party (delay in notification will not relieve indemnification obligations unless it materially prejudices the indemnifying party’s ability to defend the Claim);

2. (b) allow the indemnifying party to assume sole control of the defense and settlement of the Claim; and

3. (c) provide reasonable cooperation at the indemnifying party’s expense.
4. The indemnifying party may not settle any Claim without the Indemnified Party’s prior written consent if the settlement:

1. i. imposes any liability, obligation, or admission of wrongdoing on the Indemnified Party; or

2. ii. does not include a full release of all Claims against the Indemnified Party.

9. 9. Limitation of Liability

1. 9.1 Liability Cap. EXCEPT FOR LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW, NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL EXCEED THE LOWER OF (A) THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO GRATIFY FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, OR (B) THE OTHER PARTY’S ACTUAL DIRECT DAMAGES.

2. 9.2 Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR:

1. (a) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES;

2. (b) LOST PROFITS, REVENUE, OR BUSINESS OPPORTUNITIES;  

3. (c) LOSS OF DATA OR COST OF COVER (EXPENSES INCURRED TO PROCURE SUBSTITUTE SERVICES); OR

4. (d) BUSINESS INTERRUPTION OR LOSS OF GOODWILL,
5. IN EACH CASE ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND REGARDLESS OF THE LEGAL THEORY (CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE).

3. 9.3 Exceptions to Limitations. THE LIMITATIONS IN THIS SECTION 9 SHALL NOT APPLY TO:

1. (a) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION);

2. (b) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3 (FEES & PAYMENT TERMS);

3. (c) DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; OR

4. (d) CUSTOMER’S BREACH OF SECTION 2 (USE GUIDELINES) OR SECTION 5 (INTELLECTUAL PROPERTY & DATA RIGHTS).

4. 9. 4 Compliance with Law. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

10. 10. Term and Termination.

1. 10.1 Term of Agreement. This Agreement begins on the Effective Date and continues until terminated as set forth herein. Each Order Form will specify a Subscription Term, which shall automatically renew for successive renewal terms equal in length to the initial Subscription Term, unless either Party provides written notice of non-renewal at least ninety (90) days before the end of the then-current term.

2. 10.2 Termination for Convenience. Except as otherwise specified in an Order Form, either Party may terminate this Agreement or any Order Form upon at least ninety (90) days’ prior written notice before the end of the current Subscription Term. If Customer terminates early, all unpaid Fees for the remainder of the Subscription Term shall become immediately due and payable, unless otherwise specified in an Order Form.

3. 10.3 Termination for Cause. Either Party may terminate this Agreement or any Order Form immediately upon written notice if the other Party:

1. (a) materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days of written notice;

2. (b) becomes insolvent, files for bankruptcy, or ceases operations; or

3. (c) violates applicable Laws or Regulations in a manner that would materially impact its ability to fulfill obligations under this Agreement.
4. If Customer terminates this Agreement or any Order Form for cause under this Section 10.3, Gratify shall refund Customer any prepaid, unused Fees covering the remainder of the Subscription Term after the termination date.

4. 10.4 Effect of Termination. Upon termination or expiration of this Agreement:

1. (a) All rights granted to Customer to access and use the Services will immediately cease.

2. (b) Customer shall pay any outstanding Fees due through the termination effective date.

3. (c) If requested, Gratify will provide Customer a copy of its Customer Data in a standard format, provided such request is made within thirty (30) days of termination. After this period, Gratify may delete all Customer Data in accordance with its data retention policies, and Customer acknowledges that such data may not be recoverable after this period.

4. (d) Sections that by their nature should survive termination, including but not limited to Confidentiality, Fees & Payment, Intellectual Property, Indemnification, Limitation of Liability, and Dispute Resolution, shall remain in effect.

11. 11. General Provisions

1. 11.1 Governing Law & Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to its conflict of laws principles. Any disputes arising under or in connection with this Agreement shall be resolved exclusively in the courts located in Vancouver, British Columbia, and each Party consents to the personal jurisdiction and venue of such courts.

2. 11.2 Assignment. Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, except that Gratify may assign this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without Customer’s consent. Any attempted assignment in violation of this provision shall be null and void.

3. 11.3 Force Majeure. Neither Party shall be liable for any failure or delay in performance due to causes beyond its reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, labor disputes, government actions, internet or telecommunications failures, hosting provider failures, power outages, or other force majeure events. The affected Party shall use commercially reasonable efforts to mitigate the impact of such events.

4. 11.4 Notices. All notices under this Agreement must be in writing and sent only by email. Notices shall be deemed delivered on the second business day after sending.

1. - Notices to Customer shall be sent to the individual who executed this Agreement on behalf of Customer and/or an Administrator.

• - Notices to Gratify shall be sent to legal@gratifypay.com.

• - Each Party is responsible for updating its contact details as necessary to ensure receipt of notices.

5. 11.5 Entire Agreement & Amendments. This Agreement, together with all applicable Order Forms, constitutes the entire agreement between the Parties and supersedes all prior agreements, representations, and understandings, whether written or oral, relating to its subject matter.
6. No terms or conditions stated in a Customer purchase order, or any other Customer-provided documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms and conditions are specifically and expressly rejected. Any amendments or modifications to this Agreement must be in writing and executed by authorized representatives of both Parties.

6. 11.6 No Waiver. Failure or delay by either Party to enforce any right or provision under this Agreement shall not be considered a waiver of such right or provision. A waiver shall be effective only if explicitly stated in writing and signed by the waiving Party.

7. 11.7 Severability. If any provision of this Agreement is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect. The invalid, illegal, or unenforceable provision shall be replaced with a valid provision that most closely reflects the intent of the original provision.

8. 11. 8 Independent Contractors. The Parties are independent contractors, and nothing in this Agreement shall be construed to create a partnership, joint venture, agency, fiduciary, or employment relationship between the Parties. Neither Party has authority to bind or enter into obligations on behalf of the other.

9. 11.9 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their permitted assigns. No third party shall have any rights under this Agreement.

10. 11.10 Third-Party Services Disclaimer. Customer may use the Services in connection with third-party applications, integrations, or services (“Third-Party Services”). Gratify makes no warranties or representations and shall have no liability or support obligations with respect to Third-Party Services, even if they interoperate with the Services. Customer’s use of Third-Party Services is solely governed by Customer’s agreements with the applicable Third-Party Providers.

11. 11.11 Open-Source Software Disclaimer. Certain components of the Services may include open-source software licensed under separate terms. Nothing in this Agreement restricts Customer’s rights or obligations under the applicable open-source software licenses. Open-source software is provided "as is" without warranties of any kind.

12. 11.12 Trial & Beta Products. If Customer uses a feature or product designated as “trial,” “beta,” “pre-GA,” “pilot,” “preview,” “evaluation,” or provided at no cost (“Trial Product”), Customer acknowledges and agrees that such Trial Product is provided on an "as-is" basis, without warranties or guarantees of any kind.
13. Gratify shall have no indemnification obligations or liability for Trial Products. Customer shall not use Trial Products with live, production, Customer Data, or Merchant Data and acknowledges that any data or configurations may be permanently lost upon termination of the Trial Product period.

13. 11.13 Marketing & Publicity Rights. Gratify may publicly identify Customer as a client and use Customer’s name and logo in marketing materials, websites, and customer lists. Any other use of Customer’s name or logo shall require prior written consent.
14. Customer shall not publish, disclose, or distribute any benchmarking or performance testing results of the Services without Gratify’s prior written approval.

14. 11.14 Governing Language. This Agreement is drafted in English, which shall be the governing language for all communications, negotiations, and dispute resolutions related to this Agreement. Each Party waives any right it may have under applicable law to have this Agreement written in any other language.

15. 11.15 Counterparts & Electronic Signatures. This Agreement, including any Order Forms, may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Signatures exchanged electronically or via PDF shall be deemed original signatures and fully binding.

12. 12. Definitions. For the purposes of this Agreement, the following terms shall have the meanings set forth below:

1. (a) "Affiliate" means, with respect to any person, any other person directly or indirectly controlling, controlled by, or under direct or indirect common control with such person. Notwithstanding the foregoing, with respect to Gratify, the term “Affiliate” shall not include any commingled funds or investment vehicles managed by a registered investment advisor (or any portfolio company thereof) or any other person principally in the business of making or managing investments.

2. (b) "Agreement" means this Master Services Agreement, including all Order Forms, exhibits, and amendments.

3. (c) "Confidential Information" means all confidential and proprietary information of a Party (the “Disclosing Party”) disclosed or made available to the other Party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure. Confidential Information includes, but is not limited to, business and marketing plans, pricing, product roadmaps, technology, security reports or audits, financial information, trade secrets, product designs, business processes, results of penetration testing, and the terms and conditions of this Agreement.

4. (d) "Customer Data" means all electronic data or information provided to the Services in connection with Customer’s and its Users’ use of the Services. Customer Data may include Personal Data.

5. (e) "Deliverables" means any work product, reports, scripts, or materials created by Gratify in the course of performing Professional Services, excluding the Services and Gratify’s proprietary technology.

6. (f) "Documentation" means the user guides, technical manuals, specifications, and other materials related to the Services, as provided or made available by Gratify on its website or other electronic format.

7. (g) "Effective Date" means the date this Agreement becomes effective, as specified in an applicable Order Form or, if no Order Form applies, the date Customer first accesses or uses the Services.

8. (h) "Fees" means the amounts payable by Customer for the Services, Professional Services, and any applicable add-ons, as set forth in an Order Form.

9. (i) "Gratify" means Gratify Payments Inc., a company incorporated under the laws of British Columbia, Canada.

10. (j) "Intellectual Property Rights" means all copyrights, trademarks, service marks, trade names, patents, patent applications (including all reissues, divisions, renewals, extensions, continuations, and continuations-in-part), inventions (whether patentable or not), trade secrets, know-how, and any other proprietary rights recognized under any jurisdiction’s laws.

11. (k) "Malicious Code" means any virus, worm, Trojan horse, spyware, or other code, file, or program designed to disrupt, damage, or gain unauthorized access to systems, networks, or data.

12. (l) "Merchant" means any individual or entity that is processed by Customer using the Services.

13. (m) "Merchant Data" means any data, documentation, or information related to a Merchant, submitted or processed through the Services. Merchant Data is a subset of Customer Data.

14. (n) "Order Form" means any ordering document, including any product-specific terms, supplements, or addenda thereto, for Customer’s purchases from Gratify that is executed by both Parties.

15. (o) "Overage Charges" means the additional Fees payable by Customer when its usage of the Services exceeds the limits specified in an Order Form.

16. (p) "Party" or "Parties" means Customer and Gratify, individually and collectively, as the context requires.

17. (q) "Personal Data" means any information that relates to an identified or identifiable individual.

18. (r) "Professional Services" means any implementation, configuration, integration, training, consulting, or other mutually agreed services provided by Gratify, as specified in an Order Form.

19. (s) "Renewal Term" means the additional term(s) following the initial Subscription Term, as specified in the applicable Order Form.

20. (t) "Security Incident" means any unauthorized access, acquisition, disclosure, alteration, or destruction of Customer Data while in Gratify’s possession or control.

21. (u) "Services" means the software-as-a-service (SaaS) platform and related services provided by Gratify, as specified in an Order Form.

22. (v) "Subscription Term" means the period during which Customer is authorized to use the Services, as set forth in an Order Form.

23. (w) "Support Services" means the technical support services provided by Gratify in accordance with an applicable Order Form.

24. (x) "Taxes" means all applicable taxes, levies, duties, tariffs, or similar governmental assessments, excluding taxes based on Gratify’s net income, corporate profits, or property.

25. (y) "Third-Party Services" means any external services, applications, or software that Customer may use in connection with the Services but that are not provided by Gratify.

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