BETWEEN: TRIANGLE HOLDINGS LIMITED, a company incorporated under the laws of Hong Kong, whose address is Room 1201, Allied Kajima Bldg, 138 Gloucester Rd,
Wanchai, Hong Kong (hereinafter referred to as "TRIANGLE HOLDINGS") and you. If you are agreeing to this Agreement not as an individual
but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. Triangle Holdings may
modify this Agreement from time to time.
By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by using or accessing Triangle products,
you indicate your assent to be bound by this Agreement.
Each of TRIANGLE HOLDINGS and CLIENT is individually referred to as a Party and, collectively, as Parties.
TRIANGLE HOLDINGS provides customer relationship management (CRM) related products and services. TRIANGLE HOLDINGS also may retain third parties for
additional services related to online merchant gateway and payment consulting services, including but not limited to risk management, dispute resolution
and customer service; and
TRIANGLE HOLDINGS has developed and licenses various software programs, provides maintenance and support services to its customers; and
CLIENT desires to access and use the Software and Services, all in accordance with the terms and conditions hereof; and
TRIANGLE HOLDINGS is able to provide Services (as hereinafter defined) as a services provider; These Services are related but not limited to, CRM, Fraud
Management, Chargebacks, Merchant Processing, Customer Service, Fulfillment, and similar products and services; and
TRIANGLE HOLDINGS shall own any and all rights, title and interests in the TRIANGLE HOLDINGS technology and Services, including (without limitation)
ownership rights to any and all patents, copyrights, trademarks, and trade secrets in connection therewith. CLIENT shall not contest or aid in contesting
the ownership or validity of the copyrights, trademarks, service marks, and trade secrets of TRIANGLE HOLDINGS; and
CLIENT wishes to engage TRIANGLE HOLDINGS to provide the Services, and TRIANGLE HOLDINGS wishes to provide those Services, subject to the terms and
conditions set forth in this Agreement; Services provided under this agreement will be listed in Appendix A
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS
1.1. "Acquiring Bank" means a financial institution designated by CLIENT to acquire and settle transactions.
1.2. "Access" - The term "access" and variants thereof (including, but not limited to, the terms "access", "accessible" and "accessing", in upper or lower
case) shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
1.3. "Affiliate" - With respect to CLIENT, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or
under common control with CLIENT, which agrees in writing to be bound by all the obligations of CLIENT hereunder.
1.4. "Applicable Law" means any national, state, provincial, municipal or other law, rule or regulation that is applicable to the Parties, or to the
1.5. "Authorized Users" - The number of identifiable unique persons consisting of CLIENT's personnel and outside consultants who are authorized to access
and use the Services, as specified in the Agreement by a CLIENT’s designated employee. Authorized Users may include CLIENT’s third party consultants,
outsourcers, contractors and other service providers.
1.6. "CLIENT Data." CLIENT’s information or other data processed, stored or transmitted by, in or through the Services.
1.7. "Cancellation Notice" - The term "Cancellation Notice" shall mean that written notice sent by one party of this Agreement to the other party of this
Agreement seeking to cancel this Agreement (i) by email if the email is transmitted and received between email addresses previously designated by the
1.8. "Card" means a valid and unexpired credit card issued by an Issuing Institution, and bearing the symbol of Visa, MasterCard or other card with respect
to which TRIANGLE HOLDINGS in writing indicates it will provide services, and debit cards that may be specified by TRIANGLE HOLDINGS as acceptable for
purposes of this Agreement
1.9. "Card Associations" means Visa International Service Association (and any of its constituent associations), MasterCard Incorporated (and any of its
association subsidiaries), and any other association issuing or establishing rules governing use of a Card processed by TRIANGLE HOLDINGS pursuant to this
1.10. "Chargebacks" means all approved and settled Transactions which at any time and for any reason are refused, debited or charged back by the Issuing
1.11. "Confidential Information" means (i) the terms and conditions hereof, (i) non-public aspects of TRIANGLE HOLDINGS Site and the operation thereof,
TRIANGLE HOLDINGS technology, and the Services and additional services provided by TRIANGLE HOLDINGS, and TRIANGLE HOLDINGS business and technical
information, (iii) CLIENT Data, and non-public aspects of CLIENT’s technology, computer programs, and business and technical information. In addition,
Confidential Information includes information which, although not related to the Services or this Agreement, is nevertheless disclosed hereunder, and
which, in any case, is disclosed by an Owner or an affiliate to CLIENT in document or other tangible form bearing an appropriate legend indicating its
confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a
written summary hereof, also marked with such a legend, is provided to CLIENT within fifteen (15) days of the initial disclosure.
1.12. "Designated Processor" shall mean the processor selected by CLIENT, if not TRIANGLE HOLDINGS. CLIENT shall notify TRIANGLE HOLDINGS of the identity
and necessary contact details for the Designated Processor.
1.13. "Effective Date" shall have the meaning set forth on the signature page(s) hereof.
1.14. "Internet Data Centers." Any of the facilities owned or controlled by TRIANGLE HOLDINGS and used by TRIANGLE HOLDINGS to provide the Services. These
facilities house the TRIANGLE HOLDINGS technology used for the provision of Services.
1.15. "Issuing Institution" means the financial institution issuing Cards.
1.16. "Material Adverse Event" means any event or occurrence of whatever nature (including any adverse determination in any litigation, arbitration or
governmental investigation or proceeding) that has:
1.16.1. A materially adverse effect on the business, properties, operations, prospects or conditions, financial or otherwise, of TRIANGLE HOLDINGS;
1.16.2. A materially adverse effect on the ability of TRIANGLE HOLDINGS to perform any of its obligations under this Agreement; or
1.16.3. Any material impairment of the validity or enforceability of any security interest granted hereunder, or any material impairment of the rights,
remedies or benefits available to TRIANGLE HOLDINGS under this Agreement.
1.17. "Nonpayment Notice" - The term "Nonpayment Notice" shall mean that written notice from TRIANGLE HOLDINGS to CLIENT alleging nonpayment under this
Agreement and seeking to cancel this Agreement unless payment is rendered as provided there under.
1.18. "Person" means any individual, corporation, partnership, joint venture, association, limited liability company, joint stock company, trust or
1.19. "Password" - The term "Password" shall mean that certain user name and password assigned by TRIANGLE HOLDINGS for purposes of accessing the Services
1.20. "Proprietary Rights." Any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information,
know-how, trade secrets, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade
names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or
1.21. "Refund" means a refund, credit or other payment back to a consumer from a Merchant, or from an Issuing Institution or Acquiring Bank on behalf of a
Merchant except for a Chargeback.
1.22. "Rules" - The term "Rules" shall mean laws, rules, regulations, orders, procedures or policies of Government or third parties as amended.
1.23. "Services." The software and web services described and specified on in the Agreement and any updates or upgrades to such services which may be
generally released by TRIANGLE HOLDINGS to all CLIENT’s from time to time.
1.24. "Site" or "Sites." Various URL’s and domains whereby TRIANGLE HOLDINGS provides the Services.
1.25. "Support Services" - The term "Support Services" shall mean those certain telephone (or electronic mail) support services, in the form of
consultations and assistance, provided by TRIANGLE HOLDINGS to CLIENT concerning use of the Product and correction of defects.
1.26. "Term" - The term "Term" shall mean a period starting on the Effective Date and continuing until this Agreement is terminated or cancelled as
provided under this Agreement.
1.27. "Transaction" means every request for acceptance of a Card or for information embossed on a Card, or other required information with respect to an
actual or contemplated purchase of goods or services provided by CLIENT, whether such request is approved or declined, including authorizations, purchases,
refunds, chargebacks, status lookups, identity verification, cancel settlements or similar actions, regardless of whether the request is accepted or
otherwise acted on by TRIANGLE HOLDINGS.
1.28. "TRIANGLE HOLDINGS Indemnified Party" and "CLIENT Indemnified Party" shall have the meanings set forth in Section 8 herein.
1.29. "TRIANGLE HOLDINGS technology" - The computer hardware, software and other tangible equipment and intangible computer code necessary to deploy and
serve the Services via the Site and/or Sites.
1.30. "URL" Uniform Resource Locator, the address on the internet for the provision of the Services.
1.31. "Users" - The term "Users" shall mean employees of CLIENT authorized by CLIENT to access the Product, excluding Unauthorized Users.
Subject to the terms and conditions set forth in this Agreement, TRIANGLE HOLDINGS agrees to provide the Services set forth in this Section and such other
Services to which the parties may agree through mutually executed writing amending this Agreement.
2.1. Gateway Services, which shall consist of the following:
2.1.1. Risk management (screening) and transmission to CLIENT's Designated Processor of consumer Card information, including consumer's Card number or
similar information expiration date, and such other information as TRIANGLE HOLDINGS or CLIENT may possess or may require;
2.1.2. Provision of all documentation and application programming interface(s) required for CLIENT to submit required Transaction information to TRIANGLE
2.1.3. Provision of back office interface and reporting, in a manner and to the extent reasonably determined by TRIANGLE HOLDINGS, of Transaction activity,
including reports of Chargebacks, declines and the like;
2.1.4. Technical support for CLIENT in connection with the TRIANGLE HOLDINGS Services. Such support services shall be provided solely to CLIENT as they
relate to the TRIANGLE HOLDINGS services, not as they relate to any 3rd party services.
2.2. This Agreement grants no rights whatever to CLIENT in or to any of TRIANGLE HOLDINGS' intellectual property, including but not limited to software,
technology, trademarks, trade names, logos and copyrights, except as expressly stated herein.
2.3. The Services shall be rendered in a manner that will support the Authorized User requirements and other requirements provided in this Agreement.
2.4. The Services shall be scalable in a manner that allows the Services to meet any forecasted increase provided in the Agreement. CLIENT acknowledges
that increasing the Authorized User requirements and/or data storage requirements may lead to increases in the Fees charged for the Services per TRIANGLE
HOLDINGS’s most recent published fee schedule. Any such changes will be discussed with the CLIENT in writing prior to implementation.
3.1. Set-Up Fee. CLIENT shall pay TRIANGLE HOLDINGS an initial Set-Up Fee for a Services account in the amount specified in Appendix A hereof. The Set-Up
Fee shall be included in the invoice for the month in which such CLIENT account is activated. TRIANGLE HOLDINGS will complete all tasks required to make
the Services accessible to CLIENT, including (i) implementing in the TRIANGLE HOLDINGS technology any interfaces required to perform the obligations as
detailed in the Agreement, (ii) delivering to CLIENT any proprietary software and related documentation necessary to access the TRIANGLE HOLDINGS
technology to access and use the Services, (iii) assigning all security access, passwords and user IDs necessary to access the TRIANGLE HOLDINGS technology
and Services, (iv) preparing data that may be specified on the Agreement for use with the Services, (v) migrate and validate all historical data from
CLIENT legacy databases into the TRIANGLE HOLDINGS technology so to be fully accessible to CLIENT through Services, and (vi) provide Authorized Users
training necessary for CLIENT to fully access and use the Services unaided by TRIANGLE HOLDINGS employees or agents.
3.2. Other Fees. CLIENT shall pay TRIANGLE HOLDINGS Fees for Services in the amounts specified in Appendix A hereof.
3.3. CLIENT may elect to purchase additional Services at any time by having the additional Services added to Appendix A and resubmitting this Agreement to
3.4. Invoicing. TRIANGLE HOLDINGS shall invoice CLIENT monthly for Services provided hereunder. CLIENT’s credit card shall be automatically charged for any
such invoice on the due date thereof as agreed upon in Appendix A or within ten (10) days of receiving such invoice. TRIANGLE HOLDINGS shall have the right
to terminate the Services upon CLIENT’s failure to pay any amount due, and cancel this Agreement as provided at anytime unless there are disputed amounts
being actively negotiated with TRIANGLE HOLDINGS. CLIENT’s failure to pay any amount due is subject to a time-price differential service fee at 1½% (one
and one-half percent) per month 18% (eighteen percent) annual, charged on all past due invoices 30 days from issuance.
4.1. CLIENT shall be responsible for the payment of any and all applicable sales or other taxes due upon the Transactions or in connection with this
Agreement except for any income tax payable by TRIANGLE HOLDINGS on its general income or revenue.
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1. CLIENT hereby represents and warrants to TRIANGLE HOLDINGS as follows:
5.1.1. CLIENT has the full power and authority to execute, deliver and perform TRIANGLE HOLDINGS SERVICES per this Agreement. The undersigned signatory for
CLIENT has the authority to bind, and this Agreement is valid, binding and enforceable against, CLIENT in accordance with its terms.
5.1.2. Neither CLIENT nor, if applicable, any of its employees or agents to the best of CLIENT’s knowledge, is under any obligation in favor of any other
Person, including without limitation any covenant of exclusivity, non-competition, non-solicitation or non-interference, nor is CLIENT or any of its
employees or agents relying upon any information or intellectual property owned by any person that would interfere or conflict with the terms and
conditions of this Agreement.
5.2. CLIENT hereby covenants with TRIANGLE HOLDINGS that during the Term of this Agreement, it will:
5.2.1. Abide by Applicable Law in all respects and require all agents, employees, subcontractors and others acting on its behalf to comply with Applicable
5.2.2. Immediately advise TRIANGLE HOLDINGS in writing of any errors in the Services;
5.2.3. Immediately advise TRIANGLE HOLDINGS in writing of any breach or violation of Applicable Law by or in connection with the Transactions, including
but not limited to any notice, subpoena, complaint or other legal process alleging that CLIENT's or one of its Merchant's business activities violate one
or more purportedly applicable laws or regulations;
5.2.4. Not provide or resell SERVICES provided under this Agreement to any third party; and
5.2.5. Not authorize the copying, redistribution or any other use other than the intended use of any documentation described in Section 3.1.2 hereof
without the prior written consent of TRIANGLE HOLDINGS and immediately notify TRIANGLE HOLDINGS of any violation or suspected violation of Section 8 by
CLIENT or by any others who have received Confidential Information or who have acted on CLIENT's behalf.
5.3. TRIANGLE HOLDINGS hereby represents and warrants to CLIENT as follows:
5.3.1. TRIANGLE HOLDINGS has the full power and authority to execute, deliver and perform this Agreement. The undersigned signatory for TRIANGLE HOLDINGS
has the authority to bind, and this Agreement is valid, binding and enforceable against, TRIANGLE HOLDINGS in accordance with its terms; and
5.3.2. Neither TRIANGLE HOLDINGS nor, if applicable, any of its employees or agents, is under any obligation in favor of any other person, including
without limitation any covenant of, non-competition, non-solicitation or non-interference, nor is TRIANGLE HOLDINGS or of its employees or agents relying
upon any information or intellectual property by any person that would interfere or conflict with terms and conditions of this Agreement
5.4. TRIANGLE HOLDINGS hereby covenants to CLIENT that it will use commercially best efforts to provide the SERVICES during the Term in accordance with
this Agreement; provided, however, that TRIANGLE HOLDINGS, its Affiliates and licensors, and the officers, directors, employees and agents, shall not be
liable for any loss resulting from a breach by the CLIENT of any agreement or undertaking hereunder, nor from the activities of CLIENT provided that such
loss not due to the activities of TRIANGLE HOLDINGS, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any
delay, interruption or failure to perform hereunder due to any circumstances beyond TRIANGLE HOLDINGS's reasonable control including, without limitation,
acts of God or of a public enemy, acts of a government in either its sovereign or contractual capacity. Fires, floods, explosions. epidemics, quarantine
restrictions, earthquakes, riots, wars, sabotages, accidents, embargoes, freight embargoes, unusually severe weather, strikes, lockouts, and any
interruptions, failures or defects in internet, telephone or other interconnect services or in electronic or mechanical equipment TRIANGLE HOLDINGS's
obligations hereunder shall be suspended during any of the foregoing circumstances, and it shall not be in default by reason of any failure in performance
of this Agreement if and to the extent such a failure arises out of any of the foregoing circumstances.
5.5. For avoidance of doubt, the Parties agree and understand, and CLIENT hereby represents, warrants and covenants that TRIANGLE HOLDINGS shall bear no
liability in any respect or under any theory whatever to the Acquiring Bank(s), the Designated Processor or to the Card Associations in respect of such
Transactions or the Gateway Services, unless there is found to be gross negligence or intentional misconduct by Triangle Holdings.
5.6. TRIANGLE HOLDINGS shall own any and all rights, title and interests in the TRIANGLE HOLDINGS technology and SERVICES, including (without limitation)
ownership rights to any and all patents, copyrights, trademarks, and trade secrets in connection therewith. CLIENT shall not contest or aid in contesting
the ownership or validity of the copyrights, trademarks, service marks, and trade secrets of TRIANGLE HOLDINGS.
TERM AND TERMINATION
6.1. Term. This Agreement shall be effective commencing on the Effective Date until the first anniversary of the Effective Date (the " Initial Term")
unless earlier terminated by either Party in accordance with this Section 6. After the Initial Term, unless earlier terminated by either Party in
accordance with this Section 6, this Agreement shall renew automatically for additional one (1) year periods (the "Renewal Term"), unless either Party
notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew this Agreement. The Initial Term and
all Renewal Terms shall be referred to collectively as the "Term".
6.2. Termination. TRIANGLE HOLDINGS or CLIENT shall have the right to terminate this Agreement immediately at any time upon written notice to the other
Party upon the occurrence or discovery by TRIANGLE HOLDINGS or CLIENT of any of the following:
6.2.1. Either Party breaches any of the representations, warranties or covenants under this Agreement;
6.2.2. Either Party breaches any of the material provisions of this Agreement (other than the representations, warranties or covenants) and fails to cure
such breach within ten (10) days of its receipt of written notice of default from the other Party;
6.2.3. Either Party purports to assign its rights or obligations under this Agreement without the prior written consent required under Section 10 hereof;
6.2.4. Either Party makes an assignment for the benefit of its creditors, files a petition in bankruptcy or has such a petition filed against it, is
adjudicated insolvent or bankrupt, files a petition or applies to any tribunal for any receiver, trustee, liquidator or sequestrator of any substantial
portion of its property, commences any proceeding under any law or statute of any jurisdiction respecting insolvency, bankruptcy, reorganization, or
readjustment of debt, dissolution, winding-up, composition or liquidation, otherwise experiences a Material Adverse Event, or if any receiver, trustee,
liquidator or sequestrator of any substantial portion of its property is appointed;
6.2.5. There is a change in Applicable Law that renders, in TRIANGLE HOLDINGS's sole discretion, TRIANGLE HOLDINGS's continued provision of the Services
illegal or impracticable;
6.2.6. CLIENT changes its Designated Processor and TRIANGLE HOLDINGS in its sole discretion determines that it does not wish to continue to provide
Services pursuant to this Agreement;
6.2.7. TRIANGLE HOLDINGS is requested by any Issuing Institution, governmental department or agency or similar third party to terminate this Agreement or
to cease provision of Services to CLIENT. TRIANGLE HOLDINGS shall provide written notice to CLIENT of any such cause for termination when permissible under
6.3. Termination by CLIENT. CLIENT may terminate this Agreement in the event that TRIANGLE HOLDINGS delivers notice of a rate increase to CLIENT pursuant
to Section 3.1 hereof. Such termination shall be effective thirty (30) days after CLIENT delivers written notice of termination to TRIANGLE HOLDINGS, the
rate increase would note pertain to the (30) day termination period.
6.4. Termination Without Cause. TRIANGLE HOLDINGS or the CLIENT may terminate this Agreement without cause upon thirty (30) days prior written notice to
the other party.
6.5. Effect of Termination. Upon any termination of this Agreement, CLIENT shall immediately discontinue the use of all of the Services and TRIANGLE
HOLDINGS shall return all CLIENT Data to CLIENT in a format reasonably requested by CLIENT and completely and irrevocably delete all CLIENT Data from any
TRIANGLE HOLDINGS Site and its content and software systems. CLIENT shall immediately, and in no event later than twenty days after the termination of this
Agreement pay any amounts owed to TRIANGLE HOLDINGS under this Agreement.
6.6. Suspension of Services. In lieu of termination, TRIANGLE HOLDINGS in its sole discretion may elect to suspend the provision of Services for any reason
enumerated in Section 6.2 hereof until such condition is remedied to TRIANGLE HOLDINGS's sole satisfaction.
7.1. Each Party acknowledges that in TRIANGLE HOLDINGS's performance of its duties hereunder Each Party may communicate certain confidential and
proprietary programs, procedures, proprietary or other software (including Transaction software), equipment, intellectual property and other information,
including without limitation, information concerning know how, technology, techniques, business or marketing plans related thereto (collectively, the
"Confidential Information") all of which are confidential and proprietary to, and trade secrets of, Each Party. Confidential Information does not include
information that: (i) becomes public knowledge through no fault of Each Party; (ii) can be documented as having been known prior to disclosure other than
by breach of a third party's confidentiality obligations; or (iii) can be documented as having been independently developed by Each Party. In each of the
latter two cases, the other Party shall provide the requisite documentation upon request.
7.2. As a condition to the receipt of the Confidential Information from Either Party, shall: (i) not disclose in any manner, directly or indirectly, to any
third party any portion of the Confidential Information (save where disclosure is required to auditors, counsel or other professional advisors of Each
Party or pursuant to a legal obligation. order of a court of competent jurisdiction or of a competent regulatory authority, and in each case only for such
purpose and. to the extent possible, subject to the limitations set forth in this Section 7); (ii) not use the Confidential Information in any fashion
except to perform its duties hereunder or with the other Parties express prior written consent; (iii) disclose the Confidential Information, in whole or in
part, only to employees and agents who need to have access thereto for internal business purposes; (iv) take all necessary steps to ensure that its
employees, agents and professional advisors are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all
necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in
safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of
care to prevent disclosure.
7.3. Each Party shall promptly notify the other Party of any unauthorized disclosure or use of the Confidential Information. Party in question shall
cooperate and assist the other Party in preventing or remedying any such unauthorized use or disclosure. The Parties understand that the terms of this
Agreement (including all Schedules and Appendices hereto) are Confidential Information of TRIANGLE HOLDINGS within the meaning of this Section 7.
7.4. CLIENT agrees that it will not issue any press releases or similar public statement regarding this Agreement without the prior written consent (such
consent not to be unreasonably withheld) of TRIANGLE HOLDINGS or as required by law.
7.5. TRIANGLE HOLDINGS agrees that it shall not disclose the names and other personally identifying information (including SERVICES information) about
CLIENT's Data, to the extent such information is acquired from CLIENT or is acquired by TRIANGLE HOLDINGS solely by reason of its performance of its
obligations under this Agreement, unless such disclosure is required by law, judicial or other lawful order or subpoena, or request from law enforcement or
other governmental authorities, and otherwise shall hold such information confidential, except that CLIENT agrees, understands and agrees to notify its
customers (in the latter case, to the extent required by Applicable Law) that such information will be used and disclosed to perform the Services and to
the extent TRIANGLE HOLDINGS reasonably regards as necessary for risk mitigation, fraud and identity theft prevention purposes.
7.6. General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, CLIENT agrees that TRIANGLE HOLDINGS remains the owner of
all intellectual property rights that are embodied in the Site and its content and software systems, the Services, and any suggestions, ideas, enhancement
requests, feedback, recommendations or other information provided by CLIENT or any other party relating to the Services. TRIANGLE HOLDINGS is not
prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services to CLIENT, including information
publicly known or available or that could reasonably be acquired in similar work performed for another CLIENT of TRIANGLE HOLDINGS as long as such skills
or knowledge did not come from any Confidential Information of the CLIENT.
7.7. Either party may use Confidential Information of the other party only for the purposes of this Agreement and shall protect such Confidential
Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case
using no less than a reasonable degree of care. A party may disclose Confidential Information received hereunder only as reasonably required to perform its
obligations under this Agreement and only to its employees, affiliates or consultants who have a need to know for such purposes and who are bound by
signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure. Liability and culpability from breach of
confidentiality shall fall on the respective party who violates this provision.
7.8. TRIANGLE HOLDINGS or its employees, owners, sharesholders, parent companies, or subsidiary companies agree that it shall not, under any circumstances,
share, distribute (in any form), sell, rent license, or communicate any proprietary consumer information, acquired by CLIENT or performance of CLIENT
services hereunder, unless otherwise authorized in writing by CLIENT. TRIANGLE HOLDINGS may not use, reproduce, publicly and digitally display and perform,
transmit and broadcast CLIENTS’ name, logos, trademarks, trade names, service marks, URLs and slogans to advertise, market, promote and publicize the
Services. Upon CLIENT’s request or on a mutually agreeable regular schedule CLIENT is entitled to, and TRIANGLE HOLDINGS will provide CLIENT, all CLIENT
Data, in a format reasonably determined by CLIENT. TRIANGLE HOLDINGS will not use CLIENT Data for any purposes other than fulfillment of its obligations
under this agreement. All CLIENT Data is the sole property of Client and TRIANGLE HOLDINGS has no rights in ownership or otherwise with respect to the
7.9. TRIANGLE HOLDINGS shall acquire no right, title or interest in CLIENT Data as a consequence of this Agreement. All final data produced as a result of
the input by TRIANGLE HOLDINGS of CLIENT Data into the TRIANGLE HOLDINGS technology in connection with the provision of the Services (the "IP Rights")
shall be the sole and exclusive property of CLIENT. CLIENT shall be the sole owner of all the rights to such IP Rights in any form and in all fields of use
known or hereafter existing. TRIANGLE HOLDINGS shall not use the CLIENT Data for any purpose. TRIANGLE HOLDINGS shall not disclose the CLIENT Data to any
third party unless directed by CLIENT.
7.10. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or
control of either party at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of either party; (iii) is
received by either party from a third party free to disclose it without obligation to either party, (iv) is independently developed by a party as evidenced
by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by either
7.11. Either party may disclose Confidential Information of either party pursuant to the requirements of a governmental agency or by operation of law,
provided that such either party gives written notice thereof as soon as practically and reasonably cooperates with the other party to contest such
INDEMNIFICATION AND LIABILITY
8.1. CLIENT agrees to indemnity and hold harmless TRIANGLE HOLDINGS and its Affiliates, and each of their respective officers, directors, employees, man
dataries and agents, (collectively, an "TRIANGLE HOLDINGS Indemnifies Party") from and against any and all losses, damages, liabilities, penalties,
regulatory fines, costs and expenses (including, without limitation, attorneys' fees, investigation costs and all other reasonable costs associated with
the defense thereof), that arise, result from, or relate to any breach of or failure by CLIENT to perform any of its representations, warranties or
covenants in this Agreement or any other instrument furnished or to be furnished to TRIANGLE HOLDINGS under this Agreement.
8.2. TRIANGLE HOLDINGS shall indemnify and hold harmless CLIENT and its Affiliates, and each of their respective officers, directors, employees, man
dataries and agents, (collectively, a "CLIENT Indemnified Party") from and against any and all losses, damages, liabilities, penalties, regulatory fines,
costs and expenses (including, without limitation, attorneys' fees, investigation costs and all other reasonable costs associated with the defense
thereof), that arise, result from, or relate to any breach of or failure by TRIANGLE HOLDINGS to perform any of its representations, warranties or
covenants in this Agreement or any other instrument furnished or to be furnished to CLIENT under this Agreement.
8.3. Regardless of any provision to the contrary, TRIANGLE HOLDINGS's liability to CLIENT with respect to any particular Transaction shall not exceed the
fees actually paid to TRIANGLE HOLDINGS in connection with such Transaction, and TRIANGLE HOLDINGS's liability to CLIENT cumulatively under any and all
claims that may be asserted hereunder during or after the Term shall not exceed $5O,OOO (FIFTY THOUSAND UNITED STATES DOLLARS). ALL WARRANTIES EXPRESSED OR
IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR ANY PARTICULAR PURPOSE OF THE GATEWAY
SERVICES OR OF ANY OTHER SERVICES PROVIDED BY TRIANGLE HOLDINGS HEREUNDER ARE HEREBY DISCLAIMED BY TRIANGLE HOLDINGS AND ITS AFFILIATES. IN ADDITION,
NEITHER TRIANGLE HOLDINGS NOR IT’S AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MANDATARIES AND AGENTS, SHALL BE LIABLE FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, IN ANY WAY CONNECTED WITH OR ARISING OUT
OF THE USE OF THE GATEWAY SERVICES OR ANY OTHER SERVICES PROVIDED BY TRIANGLE HOLDINGS HEREUNDER.
8.4. Further Limitation of Liability. As between TRIANGLE HOLDINGS and CLIENT, CLIENT shall bear all liability for all approved and settled Transactions
which at any time and for any reason are refused, refunded, debited or charged back by the Issuing Institutions.
SERVICE LEVEL AGREEMENT
9.1. TRIANGLE HOLDINGS is committed to service excellence and building a stable platform for our Customer Relationship Management system. TRIANGLE HOLDINGS
uses Amazon Web Services for hosting and server management. TRIANGLE HOLDINGS fully backs and supports the Service Level Agreement put forth by Amazon Web
Service. TRIANGLE HOLDINGS guarantees 99.95% system uptime and will compensate 1 business day (up to a maximum of 10days) of CRM charges per hour of
downtime that is not related to scheduled maintenance downtime. Please see APPENDIX B for the Amazon Web Services complete Service Level Agreement.
10.1. Except as otherwise provided herein, any notice, demand, request or other communication required or permitted to be given under this Agreement shall
be in writing (including electronic) and shall be effective upon the earlier of actual receipt, five (5) days following deposit with a recognized express
courier service capable of international deliveries within that time, or the same day following electronic mail transmission (with no bounce-back or other
indication of non-receipt), or successful transmission of a legible facsimile copy during regular business hours of the CLIENT, in each case with any
delivery fees pre-paid and addressed to the Party at the address it provides on the signature page hereof or such other address as that Party may notify
the other from time to time in accordance with this Section 10. Notice often termination or suspension delivered by electronic mail shall be followed by
facsimile, mail or other non-electronic transmission in a reasonably prompt manner. Notices to TRIANGLE HOLDINGS shall be addressed to "Chief Operating
Officer" and "Legal Department."
11.1. CLIENT may not assign this Agreement, or any rights or obligations hereunder, whether by contract or other agreement or by operation of law, without
the prior written consent of TRIANGLE HOLDINGS, which consent, may be withheld for any reason in TRIANGLE HOLDINGS's sole discretion. For purposes of this
Agreement, assignment shall include, but not be limited to, transfer of control of CLIENT, any ownership change which result in a new majority owner and
any change in the jurisdiction of incorporation of CLIENT. The limitations set forth in this paragraph shall not apply to TRIANGLE HOLDINGS. In the event
of a transfer of control or ownership of TRIANGLE HOLDINGS, acquisition of substantially all of its assets, merger or similar corporate reorganization, the
surviving entity or acquirer shall assume all of TRIANGLE HOLDINGS's rights and obligations hereunder.
11.2. Security. CLIENT shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the
Internet. As part of the Services, TRIANGLE HOLDINGS shall implement reasonable security procedures consistent with prevailing industry standards to
protect CLIENT Data from unauthorized access; provided, however, unless resulting from the failure of TRIANGLE HOLDINGS to perform the foregoing
obligations, the parties agree that TRIANGLE HOLDINGS shall not, under any circumstances, be held responsible or liable for situations (i) where data or
transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation
of security gaps, weaknesses, or flaws unknown to TRIANGLE HOLDINGS at the time. TRIANGLE HOLDINGS will report to CLIENT any unauthorized access to CLIENT
Data promptly upon discovery by TRIANGLE HOLDINGS, and TRIANGLE HOLDINGS will use diligent efforts to remedy any breach of security that permitted such
unauthorized access. In the event notification to persons included in such CLIENT Data is required, CLIENT shall be solely responsible for any and all such
notifications at its expense.
GOVERNING LAW; DISPUTES
12.1. This Agreement shall be governed by and construed under California law, without application of choice or conflict of laws principles of any
12.2. All disputes arising out of or in connection with this Agreement shall finally be settled through arbitration conducted through and pursuant to the
rules of the American Arbitration Association's International Centre for Dispute Resolution by one or more arbitrators appointed in accordance with the
said rules. The place of arbitration shall be in California, or such other place as the Parties mutually may agree, and the language of the arbitration
proceedings shall be English. The Parties undertake as a general principle to keep confidential all information concerning the existence of the
arbitration, all awards in the arbitration, all materials in the proceedings created or used for the purpose of the arbitration, and all materials and
information produced during the arbitration and not in the public domain - save and to the extent that disclosure may be required of a Party by legal duty,
to protect or pursue a legal right or to enforce, set aside or apply for annulment of an award in bona fide legal proceedings before a court of competent
12.3. Nothing in Section 12.2 shall preclude either Party from seeking injunctive or other equitable judicial relief: (i) to compel compliance with the
requirements of Section 12.2; (ii) to enforce an arbitrator’s award issued there under; or (iii) if such action is necessary to avoid irreparable damage or
to preserve the status quo until such time as the arbitrator is selected and available to hear such Party's request for relief. The Parties acknowledge and
agree that a breach or threatened breach of Sections 6.2, 6.5 or 8 of this Agreement shall constitute irreparable harm sufficient to support immediate
judicial injunctive relief, without need for bond. For purposes of the judicial relief contemplated under subsections (i) and (iii) hereunder, the Parties
agree to submit to the exclusive jurisdiction of the state or federal courts located in Wilmington, DE.
13.1. Non-Exclusivity CLIENT's use of the Services and TRIANGLE HOLDINGS's provision of the Services are in each case mutually non-exclusive.
13.2. Titles and Paragraph Headings. Titles and paragraph headings are for convenient references and are not a part of this Agreement.
13.3. Amendment. No amendment to this Agreement may be made without the written consent of both CLIENT and TRIANGLE HOLDINGS. All other amendments must be
reflected in writing executed by both TRIANGLE HOLDINGS and CLIENT in order to have effect.
13.4. Entire Agreement References to "this Agreement' include its appendices and any riders or schedules that subsequently are executed by the Parties.
This Agreement, together with those appendices, riders and schedules contains the entire agreement between the Parties with respect to the subject matter
and supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to the Services and the subject matters
hereof. All parts of this Agreement shall be construed harmoniously with one another, but, in the event of direct conflict, the applicable rider or
schedule followed by the body of the Agreement and then any applicable appendix shall control.
13.5. Independent Contractors. The Parties agree and acknowledge that they are independent contractors and that nothing herein shall be construed as
creating a joint venture or partnership between them. For greater certainty, CLIENT acknowledges that TRIANGLE HOLDINGS is not involved in, exercises no
ownership or control over, and derives no revenue from, CLIENT's business activities. Applicable fees required pursuant to this Agreement are solely in
respect of the Services, and TRIANGLE HOLDINGS acts solely as a provider of those Services.
13.6. No Third Party Beneficiaries. The Parties are entering into this Agreement solely based upon the agreements and representations contained herein for
their own purposes and not for the benefit of any third party.
13.7. Ownership and Title: TRIANGLE HOLDINGS shall own any and all rights, title and interests in the TRIANGLE HOLDINGS technology and Services, including
(without limitation) ownership rights to any and all patents, copyrights, trademarks, and trade secrets in connection therewith. CLIENT shall not contest
or aid in contesting the ownership or validity of the copyrights, trademarks, service marks, and trade secrets of TRIANGLE HOLDINGS.
13.8. Waiver and Severability. All remedies of either Party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any
one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either
Party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy. No waiver of any breach of
any provision of this Agreement shall constitute a waiver of any prior, concurrent or a subsequent breach of such provision or any other provisions and no
waiver shall be effective unless made in writing. In the event that any provision of this Agreement shall be determined to be illegal or otherwise
unenforceable, such provision shall be reformed to the maximum extent permissible to affect the intent of the Parties, but in any event the balance of the
Agreement shall continue in full force and effect.
13.9. Fees and Expenses. Each party shall be responsible for costs and expenses including attorney’s fees incurred by them in connection with the
enforcement of their rights under this Agreement.
13.10. Survival. The provisions of Sections 3, 4, 5, 6, 7, 8, 9, 11 and such other provisions which by their nature are intended to survive termination
shall survive the termination or expiration of this Agreement for a period of 2 years, except section 7.2 of this agreement which shall survive
13.11. Further Assurances. Each Party upon the request of the other Party shall do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged or delivered all such further acts, deeds, documents, assignments, transfers, powers of attorney and assurance as may be reasonably necessary
or desirable to effect complete consummation of the transactions contemplated herein.
ü CRM set-up fee: $750.00 excluding data migration, $1500 including migration; payable up front
ü CRM fixed monthly fee*: $800.00; CRM system access, includes:
§ Customer profile management system
§ Fraud detection/management
§ Campaign management/reporting system
§ Fulfillment management system (posting orders to fulfillment center)
§ Call center reporting system (call center not included, data post required for reporting)
FEES FOR OPTIONAL SERVICES
These optional services will be charged separately from your monthly CRM fees.
· Gateway: $0.10 per transaction, plus $10/month per merchant account
· Customer service: $0.50/min; includes trouble ticketing/email management
· Fulfillment: starting at $1.00/shipment (for 12 oz packets or less), plus postage and materials
· Chargeback Management Bundle: $5.00 per transaction; includes chargeback management + CRM tagging, and disputes.
* Please note that customized work on the system is to be handled on a case-by-case basis and development charges of $100 per hour with a 4 hour minimum
§ Implement in the TRIANGLE HOLDINGS technology any interfaces required in the to perform the obligations as detailed in the Agreement
§ Deliver to CLIENT any proprietary software and related documentation necessary to access the TRIANGLE HOLDINGS technology to access and use the Services
§ Assign all security access, passwords and user IDs necessary to access the TRIANGLE HOLDINGS technology and Services
§ Prepare data that may be specified on the Agreement for use with the Services
§ Migrate and validate all historical data from CLIENT legacy databases into the TRIANGLE HOLDINGS technology so to be fully accessible to CLIENT through
§ Provide Authorized Users training once the CRM instance is live(up to 5hrs), necessary for CLIENT to fully access and use the Services unaided by
TRIANGLE HOLDINGS employees or agents
Amazon EC2 Service Level Agreement
Effective Date: October 23, 2008
This Amazon EC2 Service Level Agreement (“SLA”) is a policy governing the use of the Amazon Elastic Compute Cloud (“Amazon EC2”) under the terms of the
Amazon Web Services Customer Agreement (the “AWS Agreement”) between Amazon Web Services, LLC (“AWS”, “us” or “we”) and users of AWS’ services (“you”).
This SLA applies separately to each account using Amazon EC2. Unless otherwise provided herein, this SLA is subject to the terms of the AWS Agreement and
capitalized terms will have the meaning specified in the AWS Agreement. We reserve the right to change the terms of this SLA in accordance with the AWS
AWS will use commercially reasonable efforts to make Amazon EC2 available with an Annual Uptime Percentage (defined below) of at least 99.95% during the
Service Year. In the event Amazon EC2 does not meet the Annual Uptime Percentage commitment, you will be eligible to receive a Service Credit as described
“Service Year” is the preceding 365 days from the date of an SLA claim.
“Annual Uptime Percentage” is calculated by subtracting from 100% the percentage of 5-minute periods during the Service Year in which Amazon EC2 was in the
state of “Region Unavailable.” If you have been using Amazon EC2 for less than 365 days, your Service Year is still the preceding 365 days but any days
prior to your use of the service will be deemed to have had 100% Region Availability. Any downtime occurring prior to a successful Service Credit claim
cannot be used for future claims. Annual Uptime Percentage measurements exclude downtime resulting directly or indirectly from any Amazon EC2 SLA Exclusion
“Region Unavailable” and “Region Unavailability” means that more than one Availability Zone, in which you are running an instance, within the same Region,
is “Unavailable” to you.
“Unavailable” means that all of your running instances have no external connectivity during a five-minute period and you are unable to launch replacement
The “Eligible Credit Period” is a single month, and refers to the monthly billing cycle in which the most recent Region Unavailable event included in the
SLA claim occurred.
A “Service Credit” is a dollar credit, calculated as set forth below, that we may credit back to an eligible Amazon EC2 account.
Service Commitments and Service Credits
If the Annual Uptime Percentage for a customer drops below 99.95% for the Service Year, that customer is eligible to receive a Service Credit equal to 10%
of their bill (excluding one-time payments made for Reserved Instances) for the Eligible Credit Period. To file a claim, a customer does not have to have
wait 365 days from the day they started using the service or 365 days from their last successful claim. A customer can file a claim any time their Annual
Uptime Percentage over the trailing 365 days drops below 99.95%.
We will apply any Service Credits only against future Amazon EC2 payments otherwise due from you; provided that, we may issue the Service Credit to the
credit card that you used to pay for Amazon EC2 for the billing cycle in which the error occurred. Service Credits shall not entitle you to any refund or
other payment from AWS. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than
one dollar ($1 USD). Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the AWS Agreement, your sole and
exclusive remedy for any unavailability or non-performance of Amazon EC2 or other failure by us to provide Amazon EC2 is the receipt of a Service Credit
(if eligible) in accordance with the terms of this SLA or termination of your use of Amazon EC2.
Credit Request and Payment Procedures
To receive a Service Credit, you must submit a request by sending an e-mail message to aws-sla-request @ amazon.com. To be eligible, the credit request
must (i) include your account number in the subject of the e-mail message (the account number can be found at the top of the AWS Account Activity page);
(ii) include, in the body of the e-mail, the dates and times of each incident of Region Unavailable that you claim to have experienced including instance
ids of the instances that were running and affected during the time of each incident; (iii) include your server request logs that document the errors and
corroborate your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks); and (iv) be
received by us within thirty (30) business days of the last reported incident in the SLA claim. If the Annual Uptime Percentage of such request is
confirmed by us and is less than 99.95% for the Service Year, then we will issue the Service Credit to you within one billing cycle following the month in
which the request occurred. Your failure to provide the request and other information as required above will disqualify you from receiving a Service
Amazon EC2 SLA Exclusions
The Service Commitment does not apply to any unavailability, suspension or termination of Amazon EC2, or any other Amazon EC2 performance issues: (i) that
result from a suspension described in Section 7.1 of the AWS Agreement; (ii) caused by factors outside of our reasonable control, including any force
majeure event or Internet access or related problems beyond the demarcation point of Amazon EC2; (iii) that result from any actions or inactions of you or
any third party; (iv) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than
third party equipment within our direct control); (v) that result from failures of individual instances not attributable to Region Unavailability; or (vi)
arising from our suspension and termination of your right to use Amazon EC2 in accordance with the AWS Agreement (collectively, the “Amazon EC2 SLA
Exclusions”). If availability is impacted by factors other than those explicitly listed in this agreement, we may issue a Service Credit considering such
factors in our sole discretion.