SOFTWARE AGREEMENT
This Software Agreement (“Software Agreement”) is entered into as of the Effective Date by epay and Customer.  epay and Customer may be referred to herein individually as a “Party” and together as the “Parties”.
In consideration of the mutual covenants and promises set forth in this Software Agreement, and other good and valuable consideration the receipt and sufficiency of which are acknowledged, the Parties hereto agree as follows:
1. 	DEFINITIONS.  All defined terms in this Software Agreement not otherwise defined in this Section shall have the meanings assigned in the part of this Software Agreement in which they are defined:
1.1	“Affiliate” means an entity now or hereafter controlled by, controlling or under common control with a Party (“Control” exists when an entity owns or controls directly or indirectly 50% or more of the outstanding equity representing the right to vote for the election of directors or other managing authority of another entity).
1.2	“Authorized Server” means either (1) an epay Server on which a Program is Run, or (2) a Server that is owned and maintained by a third party (that is not Customer) to which a License is assigned and on which a Program is Run. An Authorized Server that is under the management or control of an entity other than epay is subject to Section 3.5, below.  
1.3	“Authorized Server Host” means the entity that manages or controls the Authorized Server, as designated on the Signature Form.
1.4	“Authorized Users” shall mean the employees of Customer, its Approved Affiliates, and their temporary or contract personnel, with a need to use a Program to support Customer’s operations in the manner permitted herein pursuant to the terms and conditions of this Software Agreement.
1.5	“Confidential Information" means, with respect to a Party hereto, the terms of this Software Agreement, the Programs, any discussions, negotiations, terms or conditions related to this Software Agreement, the operations, processes, product information, data, program listings, object code, manuals,  source code, know-how, designs, trade secrets, proprietary information or specifications, or software of the disclosing Party (or of any member of the group of companies to which the disclosing Party belongs), or any such information owned by a third party of which the disclosing Party is authorized to maintain, any information developed by the Parties in the course of carrying out this Software Agreement, and all information that would be regarded as confidential by a reasonable business person and that relates to the business, affairs, customers, clients, plans, intentions or market opportunities of the disclosing Party (or of any member of the group of companies to which the disclosing party belongs), or any such information owned by a third party of which the disclosing Party is authorized to maintain.  Confidential Information does not include information to the extent that such information: (i) is or becomes generally known to the public by any means other than a wrongful act on the part of the receiving Party hereunder; (ii) was already known to the receiving Party at the time of the disclosure as evidenced by the receiving Party’s written records; (iii) is rightly received by the receiving Party from a third party who has the legal right to disclose such information; (iv) is independently developed by the receiving Party without reference to or use of the other Party's Confidential Information; or (v) is approved for release by written authorization of the disclosing Party.
1.6	“Customer” means the legal entity that has entered into this Software Agreement with epay as set forth on the Signature Form.
1.7	“Documentation” means the Program Terms, user guides, manuals and any other documentation detailing Running a Program and the use and functionality of a Program.  Documentation is provided in whatever media is generally provided by epay.
1.8	“Effective Date” means the date on which this Software Agreement is fully executed as reflected on the Signature Form.
1.9	“Implementation Fee” means the fee incurred by Customer for epay’s configuration of the Programs for the provision to Customer of initial access to the Programs as set forth in the Programs Selection and Pricing Form.
1.10	“Intellectual Property Rights” means all intellectual property rights throughout the world, including copyrights, patents, mask works, trademarks, service marks, trade secrets, inventions (whether or not patentable), know how, authors’ rights, rights of attribution, and other proprietary rights and all applications and rights to apply for registration or protection of such rights.
1.11	“License” means the non-transferrable and non-exclusive right to access and use a Program.
1.12	“License Fee(s)” means the License fees incurred by Customer set forth on the Program Selection and Pricing Form.
1.13	“Maintenance” means the Program support provided by epay to Customer under epay’s policies, as amended from time to time by epay, and the right to receive Program Updates.
1.14	“Maintenance Fee(s)” means the fees due to epay on a regular basis associated with the Maintenance of each Program set forth on the Program Selection and Pricing Form.
1.15   	“Maintenance Period” means the period during which Customer has made timely payment of each applicable Maintenance Fee and epay provides Maintenance to Customer.	
1.16	“Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.17	“Personnel” means and include a Party's or an Affiliate's directors, officers, employees, agents, auditors, consultants, representatives, outsourcers and subcontractors.
1.18	“Project Services” means any services provided by epay to Customer set forth on a Statement of Services.
1.19	“Project Services Fee(s)” means the fees incurred by Customer for the Project Services, as set forth on a Statement of Services.
1.20    	“Program(s)” means all Licensed programs identified in the Program Selection and Pricing Form.  The term “Program” does not include Project Services.
1.21	“Program Enhancement” means new versions, products, components, modules, revisions or portions of a Program that contain major enhancements, additional functionality, changes in technology or other attributes that, in epay’s sole judgment, distinguishes it from prior versions of the Program and for which epay, in its sole discretion, chooses to charge additional fees for the use thereof.
1.22	“Program Update” means any Program fixes or minor modifications, or their derivatives, that epay either releases generally, or provides to Customer to address a specific issue. For the avoidance of doubt, Program Updates do not include Program Enhancements.
1.23	“Program Terms” means the documentation that provides information about each Program, which may be updated by epay in its sole discretion from time to time.
1.24	“Running a Program” means a Program that is loaded into memory and for which one or more instructions have been executed. (Customer “Run(s) a Program” or a “Program is Run” by Customer by executing one or more of its instructions.) Once Running, a Program is considered to be Running (whether or not its instructions continue to execute) until it is actively instructed to stop running or it is removed.
1.25	“Server” means a physical or virtual (cloud-based) system capable of Running a Program.
1.26	“Skylight” means the software solution consisting of all of the Programs, Project Services and Documentation.
1.27	“Statement of Services” means any work orders or other description of Project Services that incorporates this Software Agreement.
1.28	“T&M Basis” means the rates for time spent and services provided on an ad hoc basis, as determined by epay in its sole discretion.
1.29	“Term” shall mean the Initial Term and any Renewal Term as defined in Section 2, below.
1.30	“Third-Party Software” means software from other vendors either used for the purposes of operating the Programs or to be used in combination with the Programs as approved by epay.
1.31	“Warranty Period” means sixty (60) calendar days following date on which Customer initially Runs a Program.
1.32	“Work Product” means all information, data, materials, discoveries, inventions, drawings, works of authorship, documents, documentation, models, software, computer programs, software (including source code and object code), firmware, designs, drawings, specifications, processes, procedures, techniques, algorithms, diagrams, methods, and all tangible embodiments of each of the foregoing (in whatever form and media) conceived, created, reduced to practice or prepared by epay pursuant to this Software Agreement or within the scope of services provided under this Software Agreement and all Intellectual Property Rights therein.
2.	TERM.
2.1	This Software Agreement commences on the Effective Date and, unless terminated earlier in accordance with the provisions of Section 12, shall continue in full force and effect for a period of three (3) years from the Effective Date (the “Initial Term”) and thereafter shall automatically renew for consecutive periods of three (3) years each (each, a “Renewal Term”) at each third (3rd) anniversary of the Effective Date, unless written notice of intent not to renew is given by either Party to the other at least ninety (90) days prior to the expiry of the Initial Term or any Renewal Term (as applicable).
3.	LICENSE.
3.1	License Rights.  epay grants to Customer, as of the Effective Date, a License to allow its Authorized Users to use each Program specified in the corresponding Documentation in accordance with the terms and restrictions set forth in this Software Agreement, and as follows:
(a)	Customer shall use each Program solely to process the internal data of Customer only in the manner permitted herein and consistent with the use limitations specified or referenced in this Software Agreement; 
(b)	Customer may copy and access any number of copies of any Program on any Authorized Server;
(c)	any number of Authorized Users may use a Program;
(d)	any Program may be used in combination with other software; provided that, Customer is solely responsible for any Third-Party Software or technology that it installs or uses with the Programs, Program Updates, Program Enhancements or Project Services;
(e)	each Program Update or Program Enhancement is licensed under the same terms as the Program(s) to which it applies.
Any modifications to or versions of the Program utilized by Customer shall become a part of the Program, and as such are subject to all the terms and conditions of this Software Agreement, whether such modifications or versions are developed by epay, the Customer or a third party. Upon epay’s discovery of any modifications utilized by Customer and not developed by epay, epay reserves the right in its sole discretion to review and approve or disapprove of Customer’s use of such modifications and increase any applicable Maintenance Fees proportionate to the increased support required by epay to provide Maintenance of the modified Programs.
3.2	Restrictions on License and Use.
(a)	The License provided hereunder does not transfer to Customer or its Affiliates any interest, title or rights to the Programs or any components thereof, or any Intellectual Property Rights therein, except for the rights expressly granted in this Software Agreement.  Programs and Documentation are the Intellectual Property of epay and, except as set forth herein, may not be copied, reproduced, distributed or transferred by any means or in any form without the express written permission of epay.
(b)	Customer represents and warrants for the entirety of the Term of this Software Agreement that any use of a Program by its Authorized Users shall be in strict accordance with the terms and conditions of this Software Agreement.
(c)	Customer agrees that except as expressly permitted herein, it will not itself, or through any agent, Authorized User or other third party (and Customer agrees that it is not licensed to): (a) sell, rent, lease, license, sublicense, pledge, or encumber its rights under this Software Agreement or the Programs, or any part thereof to any third party; (b) assign, distribute, transfer, furnish or otherwise disclose or make available the Programs, or any part thereof to any third party, except as permitted herein; (c) modify, add to, decompile, disassemble, or reverse engineer the Programs, in whole or in part, or attempt to do so; or (d) write or develop any derivative software or any other software program based upon the Programs or any Confidential Information of epay.
(d)	Customer agrees that it will not itself, or through any agent, Authorized User or other third party, use any other software, modules or portions of a program that may be delivered concurrently with a Program that Customer is not authorized and Licensed to use.  The unauthorized use of any such software, modules or portions of a program shall be deemed a material breach of this Software Agreement. 
3.3	Reservation of Rights. Programs, Program Updates and Program Enhancements are protected by epay’s Intellectual Property Rights. epay reserves all rights not expressly granted in this Software Agreement. No rights will be granted or implied by waiver or estoppel. 
3.4	Verifying Compliance. 
(a) 	Right to verify compliance. Customer must keep records relating to all use of Programs by Customer and its Affiliates. epay has the right, at its expense, to verify such compliance with the Programs’ License terms. epay may directly, or via an independent auditor, audit Customer’s compliance hereunder, and Customer must provide the independent auditor with any information the auditor reasonably requests in furtherance of the verification, including visible access to systems Running a Program(s) and evidence of Licenses for Programs hosted on a third party Authorized Server. Customer must provide, without undue delay, the foregoing information and access upon request of the independent auditor. 
(b)	Verification process. epay will notify Customer at least thirty (30) calendar days in advance of its intent to verify Customer’s compliance with the Licenses provided by epay to Customer under this Software Agreement. The independent auditor is subject to a confidentiality obligation sufficient to cover the auditor’s engagement with Customer for the verification process. Customer may, at its discretion, also require a mutually agreeable confidentiality agreement with the independent auditor for access to premises, data and systems. Such confidentiality agreement between Customer and auditor must be completed within fourteen (14) days of such request, and shall not restrict the ability for the independent auditor to accurately verify compliance and share the resulting information with epay. Any information collected will be used solely for purposes of determining Customer’s compliance. This verification will take place during normal business hours and the auditor will make reasonable efforts not to interfere with Customer’s operations during the course of the audit. 
(c)	Remedies for non-compliance. If verification reveals any use of Programs without applicable License rights, then Customer shall promptly pay to epay four (4) times the total amount of any past due License Fees and any applicable Maintenance Fees, at epay’s standard pricing, associated with the unauthorized use of such software, modules or portions of a Program that would have been due in the ordinary course of business between the Parties for each month during which Customer was in breach of Section 3.  Continued use of the software, modules or portions of a Program referenced in this Section shall be conditioned on Customer paying on a timely basis any ongoing applicable License Fees and/or Maintenance Fees at epay’s standard pricing. By exercising the rights and procedures described above, epay does not waive its rights to enforce this Software Agreement or to protect its Intellectual Property Rights by any other legal or contractual means. 
(d)	Customer self-audit. epay, at its sole discretion, may require Customer to conduct a self-audit, subject to the non-compliance remedies set forth herein.
3.5	Third-Party Authorized Server.  
(a)	Customer may Run a Program on an Authorized Server(s) that is/are under the day-to-day management and control of a third party; provided that, Customer is fully responsible for all of the obligations under this Software Agreement regardless of the physical or virtual location of the hardware upon which the Programs are located. Except as expressly permitted here or elsewhere in this Software Agreement, Customer is not permitted to install Licensed copies of the Programs on a Server under the management or control of Customer or on a Server under the management or control of a third party.
(b)	In the event Customer is utilizing a third-party Authorized Server to Run the Programs, and Customer’s service with such third-party Authorized Server Host is cancelled or otherwise terminated, epay agrees to provide Customer reasonable transition assistance, as requested by Customer and agreed by epay in epay’s sole discretion, to an alternative Authorized Server Host (which may be epay); provided that, Customer must compensate epay for the time, services, costs and/or expenses incurred by epay on a T&M Basis for providing the transition assistance.
4.	MAINTENANCE.  
4.1	Maintenance Period. epay shall commence Maintenance on the later of (i) the expiration of the Warranty Period, or (ii) the date of payment of the first Maintenance Fee, and shall continue for the duration of the Term, subject to Customer’s timely payment of Maintenance Fees, as set forth in Program Selection and Pricing Form, unless written notice of intent to terminate Maintenance is given by one Party to the other at least ninety (90) days prior to the effective date of the termination of Maintenance. 
4.2	Maintenance Fee.  Upon timely payment of the Maintenance Fee, epay will provide Maintenance of the Programs as follows: 
(a)	Warranty support as set forth in Section 8; and  
(b)	Technical support and consultation services provided via telephone, e-mail or mail, or by other mutually agreed upon means.
4.3	Maintenance Requests. Customer must make requests for Maintenance (including any reported problems or suspected errors) to epay in a written or electronic document acceptable to epay, or by telephone or other electronic means for emergency responses.  Telephone requests must be immediately followed by written requests to epay.
4.4	Maintenance Modifications.  Support, if provided by epay, as determined in its sole discretion, due to changes in the operating environment or changes made to a Program by Customer or third parties will be invoiced to Customer on a T&M Basis.  Additionally, customization, modification and support of a Program required by any changes in the Customer’s processing environment in which a Program resides, where such changes are caused by other hardware or software or third party changes or errors, are not considered part of Maintenance and will result in additional charges incurred by Customer on a T&M Basis.  Such changes made to a Program may incur additional Maintenance Fees, as determined by epay in its sole discretion.
4.5	Systems Access.  In the event Customer is utilizing a third-party Authorized Server to Run the Programs, upon implementation of a Program and for the duration of the Term thereafter, Customer shall provide epay full administrative rights to its third-party Authorized Server (i.e., subscription) on which the Programs have been implemented to support or otherwise provide Maintenance of the Programs. 
4.6	Maintenance Termination.  Subject to the Maintenance Fee terms set forth in the Program Selection and Pricing Form, Customer may terminate Maintenance at any time upon ninety (90) days written notice to epay. If the Agreement is terminated pursuant to Section 12, Maintenance will immediately terminate. 
4.7	Cessation of Support.  epay reserves the right, upon ninety (90) days prior written notice, to terminate Maintenance for a Program under this Agreement if: (i) epay ceases to offer the Program; (ii) epay ceases to support the Program; or (iii) Customer is not operating the current release of the Program (and the current release of any Third-Party Software (if applicable)).  In the event epay discontinues or otherwise ceases to support a Program, effective immediately on the date on which such support ends, epay will no longer provide warranty, Maintenance or any other support for such discontinued Program.  
4.8	Consequences of Termination.  If Customer terminates Maintenance for any reason, upon the effective date of the termination of Maintenance, Customer will no longer receive Maintenance or Program Updates.    
5.	PRIVACY AND COMPLIANCE WITH LAWS.
5.1	Processing Consent.  Customer consents to the processing of Personal Information by epay and its agents to facilitate the subject matter of this Software Agreement. Customer will obtain all required consents from third parties (including Customer’s contacts, resellers, customers, distributors, administrators, and employees) under applicable privacy and data protection law before providing Personal Information to epay. 
5.2	Applicable Regulation. Personal Information collected under this Software Agreement (1) may be transferred, stored and processed in the United States or any other country in which epay or its service providers maintain facilities, and (2) will be subject to the privacy terms agreed between the Parties. epay will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Information from the European Economic Area and Switzerland. 
5.3	U.S. Export Laws.  Programs, Program Updates and Program Enhancements may be subject to U.S. export jurisdiction. Customer must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end use and destination restrictions by U.S. and other governments related to epay Programs, Project Services, and technologies.
6.	PROJECT SERVICES AND ADDITIONAL SERVICES.
6.1     	Project Services.  epay will provide the Project Services to Customer set forth on an applicable Statement of Services, which may be amended from time to time as set forth in Section 6.2, below.
6.2	Additional Project Services.  Customer may request epay to add additional Project Services.  Additional Project Services requests must be made in writing in the form of a Statement of Services.  The Parties shall discuss each request including any associated costs, and, if necessary, epay shall supply Customer with an estimate of the cost to customer for the additional Project Services.  Such additional Project Services shall only be provided if epay and Customer mutually agree as to the terms governing the provision of such additional Project Services and the applicable costs thereof, which shall be memorialized in writing in the form of a new Statement of Services.  
6.3	Project Services Costs.  If any Project Service provided by epay herein requires travel of epay Personnel, epay will include charges for the duration of such travel time at epay’s then current hourly rate for travel time.
7.	CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS.
7.1	Confidential Information.  
(a)	Each Party undertakes that it shall not at any time during this Software Agreement, and for a period of five (5) years after termination of this Software Agreement, (i) commercialize, use, or disclose to any person or entity, except to its own Personnel, having a need to know, the other Party's Confidential Information; (ii) use or permit its Personnel to use any Confidential Information of the other Party for purposes other than in connection with performance of its duties under this Software Agreement; and (iii) disclose Confidential Information of the other Party to Personnel who are not contractually bound to maintain the confidentiality thereof.  Each Party shall ensure that its Personnel to whom it discloses the other Party’s Confidential Information comply with the confidentiality obligations set forth in this Section.  
(b)	Customer represents and warrants that Company will not provide to epay the access to any Confidential Information other than Confidential Information owned and maintained solely by Company, or third-party Confidential Information of which Company has obtained the requisite authorization to provide such third-party Confidential Information to epay from the owner of such third-party Confidential Information.
(c)	Customer shall not disclose the results of any benchmark tests of the Programs to any third party without epay’s prior written approval. 
(d)	Each Party may disclose Confidential Information pursuant to a requirement or request of a governmental agency or pursuant to a court or administrative subpoena, order or other such legal process or requirement of law, or in defense of any claims or causes of action asserted against it; provided, however, that it shall: (i) first notify the other Party of such request or requirement, or use in defense, unless such notice is prohibited by statute, rule or court order; (ii) attempt to obtain the other Party's consent to such disclosure; and (iii) agree to permit a motion to quash, or other similar procedural step, to frustrate the production or publication of information.  Notwithstanding the foregoing, nothing herein shall require either Party to fail to honor a subpoena, court or administrative order or requirement on a timely basis.  Each Party shall cooperate with the other in an effort to limit the nature and scope of any required disclosure of Confidential Information.
(e)	If applicable and upon Customer’s reasonable request, epay shall employ commercially reasonable efforts to assist Customer to comply with any applicable information security and/or data privacy and protection standards, statutes, ordinances, regulations, laws, directives or legislation.  If such efforts require extensive work on epay’s behalf, epay may, in its sole discretion, charge Customer for such work on a T&M Basis.  Furthermore, if epay at any time has access to Customer Confidential Information, epay shall comply with any applicable information security and/or data privacy and protection standards, statutes, ordinances, regulations, laws, directives or legislation.
7.2	Intellectual Property Rights.  
(a)	Customer acknowledges that the Programs, Program Updates, Program Enhancements, Documentation and any other modifications made to the Programs hereunder, contain confidential, proprietary and trade secret information which epay shall maintain all right, title and interest therein solely and exclusively.
(b)	epay will own exclusively all Work Product including all right, title and interest (including all Intellectual Property Rights) in the Work Product.
(c)	Customer acknowledges that Customer may provide to epay the access to third-party Confidential Information that may include various Intellectual Property Rights of such third-party in order for epay to ensure epay’s Programs properly integrate and communicate with Customer’s current technology and systems.  If Customer provides to epay the access to third-party Confidential Information that includes various Intellectual Property Rights of such third-party, Customer will indemnify, defend, and hold harmless epay, and its officers, directors, employees, subsidiaries, and affiliates, from and against all suits, proceedings, claims, including, without limitation, intellectual property infringement claims, damages, liabilities, costs, payments, and expenses (including reasonable attorneys' fees) asserted against epay, arising out of or in connection with any claim by any third party regarding the infringement of such third party’s Intellectual Property Rights.
8.	WARRANTIES AND REMEDIES.
8.1.	Program Warranty. epay warrants that each Program will perform, as to all material operational features, in substantial compliance with the functions described in the Documentation during the Warranty Period and any Maintenance Period.
8.2	Services Warranty.  epay warrants that its Project Services will be performed in a competent and professional manner.  If within sixty (60) days of the completion of any Project Services, Customer notifies epay that Project Services were not performed as warranted in this Section 8.2 and provides details regarding such deficiency, then epay will re-perform deficient Project Services at no charge to Customer. Such re-performance will be Customer’s sole and exclusive remedy and epay’s sole obligation for breach of this Services Warranty.  If it is ultimately determined that the original Project Services were performed by epay in a professional manner, Customer will compensate epay for any re-performance of such services.
8.3	Program Service Levels.  
(a)	If, during the Warranty Period or any Maintenance Period, Customer notifies epay of a breach of the warranties contained in Section 8.1 resulting in a verifiable and reproducible error, failure, malfunction, nonconformity or defect (collectively, an “Error”) within a Program, epay shall promptly remedy the issue pursuant to the following timeframes set forth in each corresponding severity level:
(i)	Severity 1 – Critical Business Impact. A Program is completely out of service and inaccessible to Customer.  epay will begin work on Error within one (1) hour of notification (which shall be received via phone to epay followed by an email) and will engage its support staff until a fix is found or an acceptable workaround is achieved. All reasonable efforts will be made to provide a fix or acceptable workaround within six (6) hours.
(ii)	Severity 2 – Significant Business Impact. An important Program function or process has an Error, but the overall Program is functioning. epay will begin work on the Error within four (4) hours of notification (which shall be provided via email) and will engage its support staff until a fix is found or an acceptable workaround is achieved. All reasonable efforts will be made to provide a fix or acceptable workaround within sixteen (16) hours.
(iii)	Severity 3 – Some Business Impact. Important Program features are unavailable, but a workaround is available, or less significant Program features are unavailable with no reasonable workaround. epay will provide initial response regarding the requested information or documentation clarification within one (1) Business Day of notification (which shall be provided via email) and will consider a workaround, if appropriate.  
(b)	If epay determines that no Error exists, that the Error is the result of unauthorized modifications to the Program or that the Error is the result of other misuse of the Program, Customer must compensate epay for the time, services, costs and/or expenses incurred by epay on a T&M Basis.  
(c)	Customer must fully cooperate with epay in the determination of solutions to all Errors or suspected Errors, including, supplying data requested by epay, providing epay access to Customer equipment and timely implementation of epay-supplied fixes and data gathering changes.  Customer shall, at epay's reasonable request, allow remote access to Customer's system via epay’s specifications to allow remote testing, diagnosis and correction.  Customer acknowledges and agrees that, if applicable, epay shall not be in breach of the warranties contained in Section 8.1 if Customer fails to timely and properly implement any fixes or workarounds as directed by epay.
(d)	If, during the Warranty Period or any Maintenance Period, epay fails to meet the commitments set forth above more than three (3) times in any twelve (12) month period, then epay shall issue Customer a credit of five percent (5%) off the Maintenance Fee paid for the then-current Maintenance Period, for Severity Level 1 failures, and three percent (3%) for Severity Levels 2 and 3 failures.  Such credit will be issued to Customer by applying the discount to the next Maintenance Fee invoice.
8.4	Warranty and Remedy Disclaimers.  THE WARRANTIES AND REMEDIES EXPRESSLY SET FORTH IN THIS SECTION 8 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY EPAY, AND, TO THE EXTENT ALLOWED BY APPLICABLE LAW, EPAY MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT. EPAY DOES NOT WARRANT THAT THE PROGRAMS WILL OPERATE OTHER THAN AS SPECIFIED IN THE DOCUMENTATION OR THAT THE OPERATION OF ANY PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE.  
9.	LIMITATION OF LIABILITY.
9.1	The liability of epay and its Personnel to Customer in connection with this Software Agreement, whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall exclude: (i) loss of income; (ii) loss of business profits or contracts; (iii) business interruption; (iv) loss of the use of money or anticipated savings; (v) loss of information; (vi) loss of opportunity, goodwill or reputation; (vii) loss of, damage to or corruption of data; (vii) any claims or demands made against Customer by a third party; (viii) damages arising out of or in connection with the use or performance of Third-Party Software; and/or (ix) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.  
9.2	SUBJECT TO SECTION 9.1, THE MAXIMUM LIABILITY OF EPAY AND ITS PERSONNEL FOR ANY DAMAGES SUSTAINED BY CUSTOMER UNDER THIS SOFTWARE AGREEMENT OR AS A RESULT OF ANY TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING THE MALFUNCTION OR FAILURE OF THE PROGRAMS, REGARDLESS OF THE NATURE AND EXTENT OF SUCH DAMAGES, SHALL BE LIMITED TO THE LESSER OF (A) DIRECT DAMAGES ACTUALLY INCURRED BY CUSTOMER AND (B) THE TOTAL LICENSE FEES PAID TO EPAY BY CUSTOMER DURING THE 6-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO LIABILITY. 
9.3	In no event shall epay or its Personnel be liable for any damages if (i) the Program has been modified by any party other than epay, (ii) Customer has failed to install epay-supplied Program Updates, (iii) a Program is not operated in accordance with the Documentation and any other written instructions supplied by epay, or (iv) the failure to perform of the Program is caused in whole or in part by the negligence or misuse of Customer or its Personnel.
9.4	Customer acknowledges and agrees that the Customer has the final responsibility to review the functioning of the Programs and any changes supplied by epay.  Customer shall verify for itself that the Programs meet the needs and appropriate use intended by Customer and that the Programs function accurately within the environment in which Customer is processing transactions.  Customer acknowledges and agrees that Customer has the final responsibility for configuration of hardware and system software for the equipment on which the Programs run, including any security systems and ancillary services needed to connect to, access or otherwise use the Programs. Under no circumstances will epay be liable for damages for any configuration errors for hardware or software other than the Programs.  Furthermore, Customer acknowledges and agrees that it is ultimately responsible (i) for ensuring that proper backups of the Programs and data are performed, (ii) for the complete configuration of computer hardware and non-epay software necessary to perform Customer’s functions, and (iii) to ensure correctness of data entry and that proper security procedures are in place for Customer’s operations.  Customer is fully responsible for all activities conducted under its user logins and all Customer and user data.
10.	MUTUAL REPRESENTATIONS AND WARRANTIES.  
10.1	Each Party represents and warrants the following: (a) the Party’s execution, delivery and performance of this Software Agreement (i) have been authorized by all necessary corporate action, (ii) do not violate the terms of any law, regulation, or court order to which such Party is subject or the terms of any material agreement to which the Party or any of its assets may be subject and (iii) are not subject to the consent or approval of any third party; (b) this Software Agreement is the valid and binding obligation of the representing Party, enforceable against such Party in accordance with its terms; and (c) such Party is not subject to any pending or threatened litigation or governmental action which could interfere with such Party's performance of its obligations hereunder.
10.2	In rendering its obligations under this Software Agreement, without limiting other applicable performance warranties, each Party represents and warrants as follows: (a) it is in good standing in the r jurisdiction of its incorporation and is qualified to do business in each of the other jurisdictions in which it operates hereunder; and (b) is shall secure or has secured all permits, licenses, regulatory approvals and registrations required to perform set forth herein, including without limitation, registration with the appropriate taxing authorities for remittance of taxes.
10.3	Each Party represents and warrants that it is in compliance with, and throughout the Term will continue to be in compliance with, all applicable international, federal, state and local laws and regulations relating to its performance under this Software Agreement.
10.4	Each Party represents and warrants that it is familiar with all applicable domestic and foreign anti-bribery or anticorruption laws, including, without limitation, those prohibiting each Party, and, if applicable, its officers, employees, agents and others working on its behalf, from taking actions in furtherance of an offer, payment, promise to pay or authorization of the payment of anything of value, including but not limited to cash, checks, wire transfers, tangible and intangible gifts, favors, services, and those entertainment and travel expenses that go beyond what is reasonable and customary and of modest value, to: (i) an executive, official, employee or agent of a governmental department, agency or instrumentality, (ii) a director, officer, employee or agent of a wholly or partially government-owned or -controlled company or business, (iii) a political party or official thereof, or candidate for political office, or (iv) an executive, official, employee or agent of a public international organization (e.g., the International Monetary Fund or the World Bank) (collectively, a “Government Official”) or any other person; while knowing or having a reasonable belief that all or some portion will be used for the purpose of rewarding or: (a) influencing any act, decision or failure to act by a Government Official in his or her official capacity, (b) inducing a Government Official to use his or her influence with a government or instrumentality to affect any act or decision of such government or entity, (c) inducing any person to use his or her influence to improperly affect any act or decision of such their employer, or (d) securing an improper advantage; in order to obtain, retain, or direct business.
10.5	Each Party represents and warrants that it currently complies with all applicable domestic or foreign anti-bribery or anticorruption laws, including those prohibiting the bribery of Government Officials, and will remain in compliance with all applicable laws; that it will not authorize, offer or make payments directly or indirectly to any Government Official; and that no part of the payments received by it (whether compensation or otherwise) from the other Party will be used for any purpose that could constitute a violation of any applicable laws.
10.6	Each Party represents and warrants that neither it nor its Personnel is the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is each Party, or its Personnel located, organized or resident in a country or territory that is the subject of Sanctions.  Each Party represents and warrants that neither it nor its Personnel has or during the term of this Software Agreement will violate any Sanctions.  Each Party represents and warrants that neither it nor its Personnel will use this Software Agreement to fund or engage in any activities with any individual or entity (“Person”) or in any country or territory, that, at the time of such funding or activity, is the subject of Sanctions, or in any other manner that will result in a violation by any Person of Sanctions.
11.	RESTRICTION OF ACCESS.
11.1	Without prejudice to the exercise of any of epay’s rights under any other provision of this Agreement, and without incurring any liability to Customer, epay may immediately restrict access to the Programs if:
(a)	Customer is in breach of Section 3.1 or Section 3.2, or if any verification performed by epay pursuant to Section 3.4(b) reveals any use by Customer of Programs without applicable License rights;
(b)	Customer fails to pay any sums properly due and owing under this Agreement; and/or
(c)	epay becomes or reasonably suspects that it may have become entitled to terminate this Agreement under Section 12.2(a), below, or as may be provided in any other provision of this Agreement.
12.	TERMINATION.
12.1	Termination by Either Party.  Notwithstanding any other provision of this Software Agreement, either Party may terminate this Software Agreement immediately at any time by notice in writing to the other if the other Party files a voluntary petition in bankruptcy or is adjudged bankrupt, a court assumes jurisdiction of the assets of such Party under a federal reorganization act, a trustee or receiver is appointed by a court for all or a substantial portion of the assets of such Party, such Party becomes insolvent or suspends its business or such Party makes an assignment of its assets for the benefit of creditors except as required in the ordinary course of business.
12.2	Termination for Breach.
(a)	epay may terminate this Software Agreement or any specific aspects hereof immediately upon written notice to Customer if Customer commits a material breach of any of the terms of this Software Agreement, including non-payment of any fees or invoices, that is incapable of remedy or is not remedied within fifteen (15) days of receipt of notice of the breach.  In the event of a threatened or actual breach by Customer of Section 3 or Section 7 of this Software Agreement, monetary damages alone shall not be an adequate remedy, and epay shall be entitled to injunctive, equitable, and other legal relief against such breach as may be awarded by a court of competent jurisdiction plus reasonable expenses (including attorney’s fees and costs).
(b)	Customer may terminate this Software Agreement or any specific aspects hereof upon written notice to epay if epay commits a material breach of any of the terms of this Software Agreement that is incapable of remedy or is not remedied within thirty (30) days of receipt of notice of the breach.
12.3	Termination by epay.  Notwithstanding any other provision of this Software Agreement, epay may terminate this Software Agreement immediately at any time by notice in writing to Customer in the event Customer undergoes a change of control in excess of 50% of the ownership of Customer.
12.4	Adverse Change.  If there is a change in or enforcement of applicable law or adverse regulatory action (including conclusion of a regulatory proceeding, investigation or inquiry) that a Party’s legal counsel reasonably believes prohibits or materially impairs the Parties’ ability to perform as contemplated by this Software Agreement (collectively referred to as an “Adverse Change”), the Parties shall confer in good faith within fourteen (14) days of a Party’s written request to consider changes to this Software Agreement to address such Adverse Change.  If, following notification under this Section, the Parties are unable to agree to changes within thirty (30) days following the date of the request to confer, then either Party may terminate this Software Agreement by providing thirty (30) days’ prior written notice to the other Party.
13.	CONSEQUENCES OF TERMINATION.  
13.1	Termination of this Software Agreement or any aspect hereof shall not discharge Customer from liability to epay for payments due, guaranteed or otherwise owed, accumulating late fees and its obligations pertaining to the protection of epay’s Confidential Information or Intellectual Property Rights.  The provisions of this Software Agreement that expressly survive termination or expiration, or which by their nature are intended to continue following termination or expiration, shall continue in force in accordance with their respective terms, including, for the avoidance of doubt, all payment obligations.
13.2	Upon termination of this Software Agreement, Customer agrees to promptly (but within no later than five (5) days) cease using and destroy the original and all copies of the Program(s), whether in whole or in part, in any form, including partial copies, and provide epay with a written certificate signed by an officer of Customer certifying that such Program(s) have been destroyed and/or returned to epay.
13.3     	Termination shall be without prejudice to any rights and liabilities of either Party that have accrued as of the effective date of the termination or expiration.
13.4	Termination of Maintenance shall be in accordance with the terms and conditions set forth in Section 4.
14.	MISCELLANEOUS.
14.1	Media and Marketing. Subject to the provisions of Section 7, neither Party shall issue any media releases, public announcements or public disclosures relating to this Software Agreement or use the name or logo of the other Party, including, without limitation, in promotional or marketing material or on a list of customers without the written consent of the other Party; provided that, nothing in this paragraph shall restrict any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of the releasing Party.  Notwithstanding the foregoing, epay may publish Customer’s name and logo on a reference list without the additional written consent of Customer.  
14.2	Force Majeure.  Neither Party shall be deemed to be in breach of this Software Agreement or otherwise liable to the other Party for any delay in or non-performance of its obligations under this Software Agreement (excluding any payment obligations) if and to the extent that the delay or non-performance is due to circumstances beyond the commercially reasonable control of that Party, including a failure of or interruption in the provision of essential services (such as electricity), communications systems, postal deliveries, acts of other vendors, acts of civil or military authority, labor disputes, fire, riots, civil disturbance, sabotage, war, embargo, blockage, floods, earthquakes, epidemic, delays in transportation and governmental restrictions.  In the event of a force majeure, the Party whose performance is delayed shall notify the other Party in writing of the events creating the force majeure event and the performance obligations of the Parties will be extended by a period of time equal to the length of the delay caused by the force majeure.
14.3	No Waiver.  The failure by either Party to exercise or delay the exercise of any of its rights or remedies under this Software Agreement shall not constitute a waiver by such Party of such rights or remedies, and no single or partial exercise by a Party of its rights or remedies (or the exercise by a Party of a particular right or remedy) shall limit the exercise of any other right or remedy. Except as expressly provided in this Software Agreement, the rights and remedies of each Party contained in this Software Agreement are cumulative and not exclusive of any other rights or remedies of a Party provided by law.
14.4	Non-Solicitation of Employees.  Each Party acknowledges that the other Party has gone to considerable time, effort, and expense to develop a well-trained, experienced and professional staff; and, in recognition thereof, during the Term of this Software Agreement and for one (1) year thereafter, neither Party will solicit, attempt to hire, or hire away any employee of the other Party who provided services or support under this Software Agreement to work as an employee, an advisor, or an independent consultant unless or until such employee has been completely disassociated from the current employer for a period of at least one (1) year.
14.5	Choice of Law, Venue, Dispute Resolution.  The construction, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.  The Parties agree to attempt to settle any dispute arising out of this Agreement through consultation and negotiation in good faith and in the spirit of mutual cooperation.  Accordingly, if the Parties have a dispute, the Parties agree to meet to try to resolve the dispute within fourteen (14) days after one Party delivers a written request for a meeting to the other Party.  If after such meeting, the Parties have not succeeded in negotiating a resolution of the dispute within thirty (30) days, then either Party may pursue litigation, in accordance with the provisions of this Section.  The Parties agree that jurisdiction and of any action brought pursuant to this Agreement, whether to enforce this Agreement or otherwise with respect to the relationship of the parties under this Agreement, shall properly lie in the state or federal courts located in Kansas City, Kansas.  The prevailing Party in any lawsuit will be entitled to recover from the other Party its reasonable legal fees and costs, including reasonable attorneys’ and expert fees and costs.
14.6	Severability.  If any provision of this Software Agreement is adjudged to be held invalid, illegal, or unenforceable, that provision shall be deemed severed from this Software Agreement and shall not affect the enforceability of the remaining provisions of this Software Agreement.
14.7	Currency.  All amounts referred to in this Software Agreement or in any other form, attachment or document related to this Software Agreement shall be U.S. Dollars unless otherwise designated.
14.8	Section Headings.  Section headings and other headings in this Software Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Software Agreement.
14.9	Language.  The binding and controlling language of this Software Agreement, any and all supporting documents and for all matters relating to the meaning or interpretation of this Software Agreement shall be the English language.
14.10	Notices.  Except as otherwise specifically provided herein, all notices and other communications hereunder shall be in writing (email shall suffice as set forth below) and shall be given or made by means of email notification (provided the sender did not receive an undeliverable or hard bounce-back message), hand delivery, registered or certified mail, express mail, or other overnight delivery service, proper postage or other charges paid and addressed or directed to the respective Party as set forth on the Signature Form.
14.11	Assignment.  This Software Agreement and the rights and obligations granted, including monies due or to become due, shall not be assigned, transferred, subcontracted or otherwise disposed of in any manner by either Party (by operation of law or otherwise) without the prior written consent of the other Party.  Each Party agrees that such consent shall not be unreasonably withheld, conditioned or delayed.  No assignments will be made by Customer unless the assignee agrees to accept in full the responsibilities and obligations of Customer and the scope of use remains the same.  Customer agrees and acknowledges that any permitted assignments made by Customer may be subject to a transfer fee, which must be paid prior to the consummation of an assignment, or increases to other fees incurred under this Software Agreement as determined by epay in its sole discretion.
14.12	No Partnership.  Nothing in this Software Agreement and no course of dealing between the Parties hereto shall be construed as creating a partnership between the Parties.  Each Party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits.  Except as expressly provided for in this Software Agreement, Customer shall not have and shall not hold itself out as having any authority or power to bind epay or to contract in the name of or create a liability against epay in any way or for any purpose.
14.13	Further Assurance. Each Party agrees to execute and deliver such documents and take such other actions as may be reasonably requested by the other Party, to fulfil the provisions of this Software Agreement or to carry into effect the intentions of the Parties as expressed herein in a timely manner.
14.14	Interpretation. Words denoting the singular shall include the plural and vice versa, and words denoting any gender shall include all genders.
14.15	Entire Software Agreement.
(a)	This Software Agreement together with any included documents, forms and attachments comprise the entire and exclusive agreement between the Parties with respect to the subject matter hereof and cancels all prior or contemporaneous agreements, whether written or oral, between the Parties.  This Software Agreement may be modified, changed or amended only by an express written agreement signed by duly authorized representatives of both Parties.
(b)	This Software Agreement shall be binding upon the successors and permitted assigns of the Parties. The Parties hereto, for themselves and for their successors and permitted assigns, agree to execute any instrument in writing which may be necessary or proper to carry out the purposes and intent of this Software Agreement.