DATA AGE MASTER TERMS & CONDITIONS 

1. SOFTWARE USE OF SERVICE

            Defined. For the purposes of this Agreement, “Software” shall mean the software application marketed commercially by Data Age Business Systems, Inc., “Data Age” under the name “PawnMaster,” a pawn management software as a service system that gives pawnshop owners the ability to monitor, analyze, control, and quickly adapt to changing business opportunities as well as regulatory compliance.  “Software” also includes any and all versions, updates, upgrades and derivative works of that software application, as well as all modules purchased and supplied by Data Age (including any software features designed specifically for Customer) that are designed to run in conjunction with PawnMaster. “Software” shall also include, but not be limited to, all third party software or applications licensed by Data Age for use with PawnMaster or integrated with PawnMaster in the format as provided to Customer, Customer-side applications, modules, documentation, instructions, data entry forms, invoicing and reporting forms, labels, instructional videos, electronic manuals, and related information and materials that are supplied with, comprise, or are otherwise provided to Customer by Data Age for use with the PawnMaster software application.

            Ownership.  Customer is and shall remain the owner of all original source data that Customer enters into the Software (“Customer Data”), which such Customer Data includes “Nonpublic Personal Information” and “Nonpersonal Information.” The term “Nonpublic Personal Information” means personally identifiable financial information (i) provided by a consumer to the Customer; (ii) resulting from any transaction with the consumer or any service performed for a consumer by the Customer; or (iii) otherwise obtained by the Customer; and (iv) is not otherwise publicly available, all in conformity with 15 USC 6809(4) and any Federal Trade Commission-implemented regulations, as amended from time to time.  Data Age is and shall remain the sole and exclusive owner of the Software and reserves all rights and title in and to the Software, including all intellectual property rights and proprietary rights, except in such cases where Data Age provides third party software for use with PawnMaster or integrated with PawnMaster (in which Data Age is the licensee of such software provided by a third party). Except for the limited subscription granted under this Agreement, no other right, title or interest is conveyed to Customer. The name “PawnMaster” and any derivation of that name is the property of Data Age and shall not be used by Customer for any commercial purpose whatsoever (including the inclusion of the word or any derivation thereof in a domain name) without Data Age’s express written consent, and Customer will promptly notify Data Age of  any  actual  or  threatened  misappropriation  or  infringement  of  Data Age’s  proprietary  rights  (including  the  name “PawnMaster”) which shall come to the attention of Customer.

The term “Nonpersonal Information” is all information other than Nonpublic Personal Information. For Nonpersonal Information and content (specifically including content that is covered by intellectual property rights, such as nonpersonally identifiable photos and videos), Customer specifically and expressly grants to Data Age a perpetual non-exclusive, transferable, sub-licensable, royalty-free, worldwide license (“Content License”) to use any Nonpersonal Information or intellectual property rights, such as nonpersonally identifiable photos and videos posted on or in connection with PawnMaster. Customer also specifically and expressly grants to Data Age a perpetual non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use ALL Customer’s data to provide national, regional or local analytics to customers. During the term hereof, with respect to personal nonpublic information, Customer hereby grants Data Age all rights to access and use Customer Data for the purpose of enabling Data Age to provide Customer with Data Age’s services hereunder, including but not limited to technical and customer-related support services, with the express understanding and agreement that Data Age shall not disclose any Nonpublic Personal Information to any third party whatsoever, except as required by applicable law, and through such legal process as is then required by the Gramm-Leach Bliley Act, 15 USC §§6801 – 6809 (the “Act”), as amended from time to time.  Notwithstanding the foregoing, Data Age will not be responsible for any data breach on the part of its current server, Amazon Web Services, or any future providers.

2. USE OF SERVICE

            Use. During the term of this Agreement, Data Age hereby grants Customer a nonexclusive, nontransferable, non-assignable, limited subscription to access and use the Software strictly and solely for Customer’s internal, pawn shop- related business purposes (“Business Purpose”), and at all times solely in accordance with the number of Authorized CALs (Client Access License, defined below) for the designated Locations (defined below). This Agreement and the Software to which it applies may not be assigned, sublicensed, or otherwise transferred by the Customer without prior written consent from Data Age. Any consent that may be considered will incur a license transfer fee. Concurrent access to the Software shall be permitted up to the number of CALs subscribed to by Customer (each, an “Authorized CAL”) for a particular physical or virtual store location (each, a “Location”). The Customer shall not permit the Software to be used by or disclosed to (i) any third party who is not an employee or under the control of the Customer for whom an Authorized CAL has been designated, or (ii) for any purposes other than Customer’s internal business purposes, or (iii) any third party not licensed by this Agreement, or (iv) any competitor or potential competitor of Data Age or PawnMaster whether commercially active or not. Data Age shall issue a unique user name and password to Customer for each Location that will enable the concurrent use of the Software by the number of Authorized Users (“Access Information”) at the Location only. Customer is entirely responsible for any and all activities, data and transactions that occur under Customer’s account using Customer’s Access Information. Customer shall immediately notify Data Age in the event that Customer knows or has reason to know that the security or integrity of Customer’s Access Information has been compromised.

            Requirements. The Software is designed to be used only in the manner and environment as technically provided by Data Age and Data Age does not permit direct access to the raw or back-end data files or data structures, as these data files contain proprietary data structures and are trademarks of Data Age and such disclosure would reveal proprietary trade secrets of PawnMaster, unless a provision is made under a separate written agreement. A high-speed internet connection (i.e., DSL or higher) is required for the use of the Software. If Customer uses the Software in connection with any other physical location than is authorized by Data Age, (i) such use is a violation of this Agreement and (ii) Customer does so at its own risk; Data Age shall assume no liability to damage to the Customer Data as a result of Customer’s use of the Software in contravention of the above, including location shut-down and loss of Customer data.

3. EFFECTIVE DATE AND TERM. This Agreement shall be effective on the date it is signed by Data Age and binding upon Data Age and Customer for a period as defined in Schedule A, Purchase Agreement, as “Term” or until discontinued, cancelled or terminated by Data Age in accordance with the terms and conditions set forth hereunder. Upon expiration of the Initial Term, this Agreement shall automatically renew for an additional term (each, a “Renewal Term”) at Data Age’s then-current rate, unless Customer provides notice of its intent not to renew this Agreement at least one hundred twenty (120) days prior to the expiration of the then-current term. The Initial Term and the Renewal Term are hereinafter referred to as the “Term.”

4. TECHNICAL SUPPORT SERVICES.

            Support.  Data Age shall provide technical assistance by phone or remote internet connection for problem diagnosis and possible correction and shall provide software updates when available. Customer is required to have available an internet connection with reasonable bandwidth for these services. Under the following circumstances, additional time and material charges for problem diagnosis of the software product covered by this agreement may be incurred:

1. Software improperly used
2. Problem caused by equipment or software not provided by Data Age (i.e. bad memory chips in computer, Windows® or Operating System conflicts, etc.)

Customer responsibilities under this agreement include assisting in defining or correcting the problem by performing remedial actions as directed by Data Age and providing specific examples of the problem, applying updates to programs, and upgrading to new versions of the software product. Unless otherwise agreed to by the parties in writing, service hours are from 9 a.m. to 8 p.m. Monday through Friday, Eastern Standard Time (EST).  The emergency-only service shall be available 8 p.m. to 10 p.m. Monday through Friday, EST and 10 a.m. to 8 p.m. Saturdays and Sundays, EST, excluding holidays.

In the event Customer is in default of this Agreement, including any related Purchase Agreement or in the event that this Agreement is otherwise terminated by the parties, Customer hereby understands and acknowledges Data Age’s reserved right to allow the software to deactivate or “time-out”, as appropriate, in which case Customer agrees to hold Data Age harmless from such deactivation occurrence or any resulting losses thereof, in accordance with the limitation of liability provisions set forth in this Agreement.

            Equipment Support. In the event that any hardware or equipment purchased directly from Data Age (“Supported Hardware”) is or becomes defective within thirty (30) days following Customer’s receipt of the defective items from Data Age, Data Age shall replace the defective items at no cost to Customer in accordance with Data Age’s then current return merchandise authorization (“RMA”) policy. See attached Schedule B for official RMA Policy. Customer must contact Data Age prior to the expiration of the thirty (30) day period to receive a RMA number before shipping the defective item back to Data Age. Items received without an RMA number will be rejected by Data Age. Upon the expiration of the thirty (30) day period described above, Supported Hardware will be covered solely under the applicable manufacturer’s warranty. Customer agrees to maintain its equipment and infrastructure (including, but not limited to, workstations, tablets, laptops, modems, routers, switches, Internet lines, networking, etc.) in good working order so as to allow Data Age to perform its duties under this Agreement.

            No Other Warranties.  Except as indicated above, Supported Hardware shall not be warranted by Data Age beyond the applicable Supported Hardware’s manufacturer’s warranty. The following activities and issues are specifically excluded from warranty coverage under all circumstances: repair or replacement of Supported Hardware that was subjected to physical misuse or damage (normal wear and tear excepted), viruses, spyware, Internet based attacks, Supported Hardware that was not maintained in accordance with the applicable equipment manufacturer’s directions, system rebuilds, intermediate or advanced training on the use of the Software or Supported Hardware, relocation of Supported Hardware, and setup-related activities of Customer-supplied hardware or accessories, regardless of whether such Customer-supplied hardware or accessories are used in conjunction with the Software or Supported Hardware.

            Support Exclusions.  Technical support does not include repair or software re-installation due to viruses or spyware, data recovery or reconstruction, programming or custom system modifications or custom enhancements, training sessions, third party software updates, or installation or maintenance of operating systems, new operating systems, network installation or administration, transportation, neglect or misuse, repair of damage by reason of service or repair to the system or software by persons other than Data Age’s employees and agents.

            IN NO EVENT SHALL DATA AGE BE LIABLE FOR ANTICIPATED PROFITS OR FOR DAMAGES ON ACCOUNT OF NEGLIGENCE, DELAYS, OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. DATA AGE IS NOT RESPONSIBLE FOR ANY LOSS OF MAN-HOURS, REVENUES, SUPPLIES, DATA AND INFORMATION OR ACCESSORY TIME AS A RESULT OF EQUIPMENT, SOFTWARE, SOFTWARE UPGRADE, OR SOFTWARE UPDATE MALFUNCTION, NOR SHALL DATA AGE BE RESPONSIBLE FOR DIRECT OR CONSEQUENTIAL DAMAGES AS A RESULT OF ACTS OF GOD, FIRES, VANDALISM, ACCIDENT, MISUSE, PROGRAMMING ERRORS, ENVIRONMENTAL CONDITIONING FAILURES, OR ELECTRICAL LINE NOISE AND POWER FAILURES.

            If anyone other than Data Age personnel performs or attempts to perform repairs, modifications, or alterations to the system configuration or to any of the Software and as a result any further repairs by Data Age are required, such repairs will be made at Data Age’s applicable time and material rate and terms then in effect. Also, such tampering with the Software listed at the top hereof by non-Data Age personnel will be grounds for Data Age to terminate this Agreement.

5. FEES AND CHARGES. Initial license fees are set forth in the attached Schedule A, Purchase Agreement, which forms part of this Agreement. Upon the termination of this Agreement for any reason whatsoever, unless otherwise agreed herein, including natural expiration hereof, Customer shall pay to Data Age a termination fee as set forth in Schedule A. The termination fee shall be calculated based upon the fees actually charged to Data Age customers as and for its standard rates, and shall not take into account any discounts or promotional pricing offered to Customer during the period of time preceding termination of this Agreement.

Any fees not paid when due shall give Data Age the right to suspend or cancel access to the Software and considered a breach of this Agreement by Customer and cause for termination of this Agreement by Data Age.  Customer shall maintain business practices and records necessary to manage and properly account for the number of Authorized CALs in the use of the Software at the Location(s).  If Data Age determines that Customer’s use of the Software has exceeded the Authorized CALs purchased, then Customer shall immediately pay Data Age an amount equal to one hundred twenty-five (125%) percent of the additional fees applicable to the Unauthorized CALs. 

All fees, unless prepaid, shall be paid by valid credit card, debit card, or ACH account information to which Data Age is hereby authorized to charge the license fees on a monthly or annual basis on the anniversary of this Agreement, unless another method of payment is approved by Data Age.  Customer is responsible for maintaining valid account information on file with Data Age. In the event that Data Age is unable to charge the License Fee to the credit card, debit card, or ACH account on file, then Customer will be immediately notified by Data Age.  Customer will have ten (10) calendar days from such notice to provide Data Age with valid account information, and will be assessed a $50 service charge. If monthly fees are not paid in full after this notice, an additional service charge of $100 will be assessed to Customer’s account and Interest will accrue at a rate of 18% per annum on any past due and unpaid amounts and may result in Customer’s access to the Service being suspended and Customer’s License to use the Software and Service granted by this Agreement being terminated.

 If Customer requests unscheduled, on-call service other than during Data Age’s normal-working hours, such service will be furnished at Data Age’s applicable time and material rate and terms then in effect. Charges for such service will be invoiced accordingly. Changes in equipment specifications, attachments or Software may result in an adjustment of any of the charges herein, if applicable.  Customer shall pay Data Age, upon invoice, all reasonable travel expenses of any nature whatsoever as to service performed at Customer’s request. 

Data Age by written notice to Customer may adjust the charges herein by giving Customer one hundred twenty (120) days’ advance written notice of such adjustment. Upon receipt of such notice, Customer may elect to terminate this Agreement upon the effective date if such adjustment represents an increase of more than 15% over the fees actually charged to Data Age customers as and for its standard rates (excluding any discounts or promotional pricing offered to Customer) by giving Data Age one hundred twenty (120) days’ prior written notice of termination.  Customer agrees that any breach of this Agreement by Customer, whether for non-payment on account in excess of 30 days or otherwise, will result in a fee equal to an acceleration of all charges.

6. TAXES. There shall be added to the charges provided for in this Agreement, amounts equal to any taxes, however designated, levied or based on such changes or on this Agreement, or on the Initial Fees, services rendered or materials supplied pursuant hereto, including state and local taxes paid or payable by Data Age in respect of the forgoing. Customer is responsible for reporting and payment of any local or state taxes due but not collected by Data Age.

7. UPTIME; SCHEDULED DOWNTIME.

            Availability.  Subject to the terms of this Agreement, Customer shall have access via the internet to the Software on a 24/7/365 basis, except for (i) periods of Scheduled Downtime (defined below), (ii) downtime due to Customer-side occurrences (described below), or (iii) outages or issues arising from or related to a force majeure event.

            Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime shall mean those hours determined by Data Age (but which shall not generally occur between the hours of 7 AM and 10 PM EST, Monday through Saturday, without Customer’s authorization, or unless exigent circumstances exist), during which time Data Age shall perform scheduled maintenance or adjustments to its network or the Software.  Data Age shall use commercially reasonable efforts to provide Customer with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.

            Downtime and Malfunctions. Data Age makes no warranties or guarantees against the possibility of system or Software down-time or malfunction, or of its server, Amazon Web Services, loss of man-hours, supplies, data and information or accessory time before, during, or after installation or implementation of the Software, upgrades or updates to the Software and shall not be held liable for loss of profits, data, or man-hours incurred. Further, Data Age makes no warranties nor guarantees that upgrade or updates to the Software will be free from programming errors or need for additional modifications.

            Customer-Side Occurrences. Notwithstanding any provision to the contrary, Data Age shall not be responsible for any delays or deficiencies in the provision of the Software to the extent that such delays or deficiencies are caused by non-Data Age actions or omissions, or because of equipment or services that are not provided or controlled by Data Age, including but not limited to telecommunication lines, Customer-side equipment, Internet peering issues, local ISP issues, etc.

            Remedies; Limitations. Notwithstanding any provision to the contrary, except for the Startup Exception (described below), if Data Age fails to meet the availability commitments described in this Section 7 in any given calendar month, and if such failure is reported in writing to Data Age within two (2) weeks following the date on which such commitment was not fulfilled, then upon written request from Customer, Data Age shall issue Customer a credit of one percent (1%) of the then-monthly Fees for each block of four (4) hours (pro-rated for blocks of time less than four hours) in which Data Age failed to meet the availability commitments, up to a maximum amount of fifteen percent (15%) of the Fees assessed in such calendar month. The remedies contained in this Section 7 are in lieu of any and all other remedies that might otherwise be available to Customer for Data Age’s failure to meet any availability commitment during the term of this Agreement.

            Exception. The parties acknowledge and agree that for the first fifteen (15) calendar days following the date on which access to the Software is granted to Customer, the availability commitment described in this Section 7 shall not apply to Data Age, it being understood that there may be unanticipated downtime or delays due to Data Age’s initial startup activities with Customer (the “Startup Exception”).

8. CONVERSION/MIGRATION SERVICES. If requested by Customer, Data Age may endeavor to convert and migrate 3rd party data into a format that is recognizable by, and compatible with, the Software (the “Conversion Services”). Such services will be provided under a separate written agreement, if such services are provided.

    

9. PROTECTION AND SECURITY. Customer acknowledges that the Software constitutes the proprietary property, confidential information and trade secrets of Data Age and agrees that as a material inducement for Data Age to grant to Customer the subscription hereunder, the Customer shall not, directly or indirectly, for itself or for any other person or entity, emulate, duplicate, replicate, disclose or otherwise make available or make use of any software or material, including, but not limited to, technical or non-technical data, a compilation, the flow of information, a program, a method, screen designs, report designs, any information relative to the Software and material which (i) derives economic value, actual or potential, from not being readily ascertainable by proper means by persons who obtain economic value from  its disclosure or use and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. In addition to any other limitations imposed on Customer’s access to and use of the Software, Customer shall not, and shall not permit any other person or entity, or assist any other person or entity, to directly or indirectly do the following: (i) reverse engineer, disassemble or otherwise attempt to derive the source code of the Software, or otherwise disclose to any other person or entity the Software’s operation (including, but not limited to, the Software’s screens, methods, forms or workflow), (ii) modify, translate or create derivative works of the Software, (iii) sublicense, resell, rent, lease, distribute, commercialize or otherwise transfer rights or usage to the Software, (iv) remove, modify or obscure any copyright notices or other proprietary notices or legends appearing on or in the Software, (v) use the Software in a manner that disrupts, disables or otherwise harms the operations, software, hardware, equipment or systems of a business, institution or other entity, including those systems maintained by Data Age, or (vi) embed the Software in any third party applications, unless otherwise authorized in writing by Data Age.

    

    

10. CONFIDENTIALITY.

            Defined. For the purposes of this Agreement, “Confidential Information” shall mean any and all Nonpublic Personal Information provided by Customer and any other information provided by Customer that Data Age expressly agrees, in writing, will be treated as confidential. Confidential Information shall not include information that: (i) has become part of the public domain through no act or omission of Data Age and/or the Customer, and has become part of the public domain solely through the actions or consent of the individual who has disclosed his or her own Nonpublic Personal Information, (ii) was developed independently by Data Age, or (iii) is or was lawfully and independently provided to Data Age prior to disclosure by Customer, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.

            Use. As of the date of this Agreement, Data Age is using data encryption to keep Customer’s Confidential Information confidential. Data Age shall not use or disclose such Confidential Information to any third party for any purpose except (i) as expressly authorized by Customer in writing, (ii) as needed to fulfill Data Age’s obligations under this Agreement pursuant to 15 USC 6802(b)(2) (in which case Data Age shall ensure that such any third party to whom Data Age must disclose Confidential Information is required, by written agreement, to keep the information confidential under terms at least as restrictive as those stated in this Section), (iii) as required by law, or (iv) as required by a City, County, State or Federal court order of appropriate jurisdiction. Data Age shall exercise the same degree of care with respect to the Confidential Information it receives from Customer as Data Age normally takes to safeguard and preserve its own confidential and proprietary information.

            Data Security; Consumer Privacy. Data Age acknowledges and agrees that a portion of the Confidential Information provided to, or accessible by, Data Age under this Agreement may constitute Nonpublic Personal Information related to financial transactions with Financial Institutions, as those terms are defined under the Gramm-Leach Bliley Act. Data Age further represents that it shall not use Nonpublic Personal Information for purposes of consumer credit reporting. Data Age acknowledges and agrees that the improper use or disclosure of Nonpublic Personal Information for purposes other than as contemplated by this Agreement may violate federal and/or state privacy laws, and Data Age represents that it has reasonable administrative, technical and physical safeguards and procedures in place to: (i) ensure the security and confidentiality of any Nonpublic Personal Information that Data Age receives pursuant to this Agreement; (ii) protect against any anticipated threats or hazards to the security or integrity of Nonpublic Personal Information that Data Age receives pursuant to this Agreement; (iii) protect against the unauthorized access to or use of any Nonpublic Personal Information that Data Age has in its possession; and (iv) ensure the proper disposal of any Nonpublic Personal Information that Data Age has in its possession. Customer acknowledges, however, that although Data Age has reasonable administrative, technical and physical safeguards and procedures in place to protect the Nonpublic Personal Information, there can be no guarantee against all threats. Data Age has adopted a privacy policy, which is located on its company website at www.dataage.com.

            Third Party Affiliate. From time to time, Data Age may offer to Customer the opportunity to utilize additional software systems and modules developed by third party affiliates that enhance the PawnMaster system, or that otherwise provide different features and capabilities. If Customer elects to utilize the software and modules developed by third party affiliates, Data Age shall be permitted to provide Confidential Information to third party affiliates of Data Age to permit Customer to utilize, on a trial basis, software systems or modules.  Any third party affiliate of Data Age that receives Confidential Information is bound by the same confidentiality provisions set forth in this Section 10.

11. RESPONSIBILITIES OF CUSTOMER. The Customer shall be exclusively responsible for the supervision, management, and control of its use of the Software and/or material, including but not limited to: (i) assuring proper configuration, installation, audit controls, and operating methods, (ii) establishing adequate backup plans based on alternate procedures and/or based on access to qualified technical personnel in the event of any Software malfunction, and (iii) implementing sufficient procedures and checkpoints to satisfy its requirements for security and accuracy of input and output as well as restart and recovery in the event of a malfunction. The Customer agrees that it will take appropriate action with its employees, by agreement or otherwise, to satisfy its obligations under this Agreement with respect to use, copying, modification, and protection and security of Software and material. Customer shall provide Data Age, in a timely manner, with all such information and assistance as Data Age may reasonably require in order enabling Data Age to provide its services to Customer hereunder. The Customer shall also be exclusively responsible to review all agreements generated and calculation methods utilized and charges imposed by the software are in compliance with Customer’s local, state and federal laws or those set forth by customers’ legal governing body.

     

     

12. SUPPORTED HARDWARE AND MAINTENANCE REQUIREMENTS. Customer agrees to maintain the Supported Hardware. Furthermore, Customer agrees to comply with all required maintenance agreements or minimum maintenance requirements for the Supported Hardware. Customer further agrees to prepare the site location for the Supported Hardware or any other Customer equipment in accordance with the terms and policies as required by Data Age at the inception and during the term of this Agreement. This may include, but shall not be limited to, additional electric requirements, environmental controls, telephone lines, Internet connectivity and bandwidth, virus protection, spyware protection and/or other items as may be reasonably requested by Data Age.

     

     

13. LIMITATION OF LIABILITY. DATA AGE MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AND SHALL NOT BE LIABLE FOR WARRANTIES OF FITNESS OF PURPOSE, COMPLIANCE WITH LOCAL, STATE, FEDERAL OR ANY OTHER GOVERNING BODY REGULATIONS, STATUTES AND RULES RELATING TO THE PAWN SHOP INDUSTRY, MERCHANTABILITY, AND NON- INFRINGEMENT. IN NO EVENT SHALL DATA AGE BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER, INCLUDING AS A RESULT OF ACTS OF GOD, FIRES, VANDALISM, ACCIDENT, MISUSE, PROGRAMMING ERRORS, ENVIRONMENTAL CONDITIONING FAILURES, OR ELECTRICAL LINE NOISE AND POWER FAILURES OR FAILURE OF CUSTOMER TO ADHERE TO DATA AGE’S PROCEDURAL REQUIREMENTS, OR FOR LOST REVENUE, LOSS OF PROFITS, SAVINGS, OR OTHER INDIRECT OR CONTINGENT EVENT-BASED ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY SERVICES PERFORMED OR SOFTWARE OR EQUIPMENT SUPPLIED HEREUNDER, OR BY THE INABILITY TO USE THE SOFTWARE, ANY LOSS OR INTERRUPTION OF DATA, TECHNOLOGY OR SERVICES, OR FOR ANY BREACH HEREOF, OR FOR ANY DAMAGES CAUSED BY ANY DELAY IN FURNISHING SERVICES UNDER THIS AGREEMENT, EVEN IF DATA AGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DATA AGE’S AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES FROM ANY AND ALL CAUSES WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT OF ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER, NOT TO EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO DATA AGE FOR THE SERVICES DURING THE YEAR IN WHICH THE CAUSE OF ACTION ACCRUED.

            Except as otherwise expressly stated in this Agreement, the Software, Conversion Services and Supported Hardware are provided to Customer “as is”. Customer understands and agrees that with the exception of only the warranties and remedies expressly stated in this Agreement, no warranties shall apply with regard to the Software, the Supported Hardware or any other product or service provided by Data Age to Customer.  Data Age does not warrant or guarantee that the Software, Supported Hardware or Conversion Services will be provided error-free, or that errors (if any) will be corrected in any particular time frame, except as otherwise stated in this Agreement.

            Data Age makes no representation or warranty that the Software will comply or be consistent with any Federal, State or local law ordinance, including, without limitation, any financial disclosures or calculations as may be required under any Federal, State or local law or ordinance, and Customer shall be solely responsible for such determination. The Software is not certified by the International Organization for Standardization (ISO). Time is of the essence as to performance of all of the Customer obligations hereunder, including the payment of all fees due and owing. Customer and Data Age agree that the Software or materials are not intended as “Consumer Goods” under Federal or State warranty laws. The Customer acknowledges that Data, as stored, is proprietary to PawnMaster. Notwithstanding, the Customer owns the data and has a right to procure its data at any time during the term of this Agreement. Customer data procurement is subject to service charge and is only eligible for accounts that have been paid in full.

14. SOLICITATION OF DATA AGE PERSONNEL. Notwithstanding anything in this Agreement to the contrary, this Agreement is subject to immediate termination and forfeiture should the Customer, directly or indirectly, attempt to employ, divert, convert, solicit, or take away any employee of Data Age or employ, contract with, or accept services from any of Data Age’s employees, staffing personnel, contractors, independent contractors or otherwise, during the term of this Agreement, while employed or under contract with Data Age, and for a period of two (2) years after such employment or contract relationship with Data Age has ceased, for any reason whatsoever.

     

     

15. TERMINATION. In the event that Customer defaults under this Agreement (“Default”) by (i) failing to pay timely the any fees or other amount due Data Age, or (ii) committing any breach under this Agreement and such breach remains uncured for ten (10) days following the Customer’s receipt of written notice of default from Data Age, then in either event, Data Age shall have the right to suspend Customer’s access to the Software, including Customer Data, at all Locations, and/or terminate this Agreement, in addition to all other remedies in law or equity. During the Term of this Agreement, Data Age shall have the right to terminate this Agreement for any reason other than a Default by providing one hundred twenty (120) days’ notice to Customer of cancellation, and in such event, the Customer shall not be responsible to pay any Termination Fees as set forth in Section 5 above. Data Age shall not be responsible for, and Customer shall indemnify and hold Data Age harmless against, any and all liabilities (both legal and financial), losses, costs, fees, expenses, penalties and amounts that Customer or Data Age incurs (collectively, “Damages”) as a result of Data Age’s suspension or authorized termination of this Agreement for any reason as described herein, or the negligent acts, negligent omissions or intentional misconduct of Customer or Customer’s employees or subcontractors. Data Age and Customer shall have the right to select counsel of its choosing to address, administer and/or remediate any matters involving any Damages for which Data Age or Customer is to be indemnified under this Agreement. The waiver of liability shall include, but shall not be limited to, the loss of actual or anticipated profits, anticipated or actual sales, and expenditures, investments or commitments in connection with such party’s or any third party’s goodwill or business. In no event shall Data Age have any obligation to store or maintain any of Customer Data for more than thirty (30) calendar days following the termination of this Agreement, even if requested by Customer to do so. Data Age shall be held harmless for, and indemnified by Customer against, any and all Damages incurred by either party that arise from, or are related to, any data loss or Data Age’s deletion of Customer Data pursuant to this paragraph.

            The Customer acknowledges and agrees that the Software provided by Data Age pursuant to the terms of this Agreement is special, unique, and of an extraordinary character, and a default of any of the material provisions of this Agreement would be of crucial importance to Data Age and would result in irreparable harm to the business of Data Age, and that failure to enforce any covenants contained in this Agreement shall affect the legitimate business interests of Data Age. As such, in the event of a breach or a threatened breach of any of the provisions of this Agreement by Customer, Data Age (in addition to and not in limitation of any other rights, remedies or damages available to Data Age at law or in equity) shall be entitled to a temporary and/or permanent injunction, without the necessity of posting bond(s), in order to prevent or restrain any such breach by Customer or by its partners, agents, representatives, servants, employers, employees and/or any and all persons, directly or indirectly, acting for or with Customer. In addition to the equitable relief provided for herein, Data Age shall also be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which Customer, directly or indirectly, has realized and/or may realize as a result of, growing out of, or in connection with any such violation of this provision, or any other provision, of this Agreement.

Upon termination and/or forfeiture of this Agreement, the Customer shall immediately, at the Customer’s own cost and expense, destroy permanently all documentation, training videos, and manuals provided to Customer by Data Age or developed by Customer on its own, including any and all user guides, procedures or manuals, and shall immediately cease and desist from the use of the Software. Furthermore, Customer will not be entitled to a refund of any kind whatsoever. Any loss of any of Customer Data due to termination of this Agreement is solely the responsibility of Customer.

16. GOVERNING LAW; VENUE; ARBITRATION. This Agreement shall be governed by, and construed according to, the laws of the State of Florida. THE PARTIES AGREE THAT THEY WAIVE ANY RIGHT TO A TRIAL BY JURY for any and all claims and causes of action arising from or related to this Agreement. Any disputes or claims under this Agreement or its breach shall be submitted to and resolved exclusively by arbitration conducted in accordance with American Arbitration Association rules. One arbitrator appointed under such rules shall conduct arbitration. Arbitration shall be in Pinellas County, Florida, and the laws of Florida shall be applied. Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, Data Age may sue in any court of competent jurisdiction for infringement of its proprietary or intellectual property rights or any claims relating to Customer’s indemnification obligations to Data Age under this Agreement.

     

     

17. ELECTRONIC/FACSIMILE SIGNATURES. This Agreement may be executed in counterparts, each of which shall be deemed an original, and which together shall be deemed one and the same Agreement. Electronic acceptance via e-mail or facsimile (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by accepting on-line by clicking the appropriate box will have the same legal effect as original signatures and are binding on the parties.

     

     

18. ATTORNEY’S FEES. In the event of a dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, role, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges., information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.

     

     

19. NOTICES. Where notice is required to be provided to a party under this Agreement, such notice shall be deemed delivered (i) upon receipt (or refusal of delivery) by the receiving party, sent via United States Mail, first class mail, certified or return receipt requested, postage prepaid; or (ii) one (1) day following delivery when sent by FedEx to the addresses set forth on the first page of this Agreement, or to such other address(es) as the parties may designate from time to time. Notice may be sent by electronic mail (“email”) as long as written notice is also simultaneously provided to the receiving party, (i) sent via United States Mail, first class mail, certified or return receipt requested, postage prepaid; or (ii) one (1) day following delivery when sent by FedEx to the addresses set forth on the first page of this Agreement, or to such other address(es) as the parties may designate from time to time.

     

     

20. MISCELLANEOUS. This Agreement replaces and supersedes any previous agreement between the parties and constitutes the entire Agreement between the parties relative to the subject matter thereof. This Agreement replaces any prior PawnMaster End User License Agreement and/or PawnMaster Customer Care Agreement and acceptance of this Agreement is acceptance that all Licenses previously issued and support terms of these aforementioned Agreements are null and void and will now be superseded by this PawnMaster Software Subscription Agreement per the terms and conditions of this Agreement. The term of this Agreement commences as of the date of this agreement going forward and is not to be construed as continuing the term of any prior Agreements aforementioned that are now null and void. The Customer’s acceptance of future delivery of any Software or material from Data Age is conclusive evidence of its agreement that the subscription for such software and material is governed by the terms of this Agreement and any Amendments made to it. Such Amendments may occur on-line and be accepted by clicking the appropriate box upon PawnMaster startup. The Customer’s remedies in this Agreement are exclusive. Any or all of Data Age’s rights or obligations herein may be assigned by Data Age without notice to Customer and without Customer’s consent, and may be exercised thereafter by the assignee of such rights or obligations, and such assignee shall attorn to all of the rights and obligations of Data Age as set forth herein. This agreement is subject to acceptance by Data Age at its corporate office. This Agreement may not be assigned or transferred by Customer without the prior written consent of Data Age, which shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. No amendment or modification to this Agreement shall be effective unless such amendment or modification is in writing, specifically references this Agreement, and is signed by a designated and authorized representative of each party, or accepted on-line by clicking the appropriate box. Time is of the essence as to all of the Customer performance obligations hereunder including the payment of all fees due and owing. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement shall survive such termination or expiration. The parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the parties to this Agreement shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. Each party is an independent contractor of the other, and neither is an employee, partner or joint venture of the other.

     

     

21. SEVERABILITY. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.