Retailers
BACKGROUND
Accelpay has developed a proprietary software-as-a-service platform and related e-commerce tools to market products to consumers via liquor brand websites (“Brand Sites”). Under the terms of this Agreement, Accelpay will use tools embedded on the Brand Sites (“Accelpay Tools”) to connect consumers to retailers licensed to sell alcoholic beverages (“Retailers”). When consumers purchase products from the Brand Sites via Accelpay’s Tools, they are purchasing such products from a Retailer.
USE OF THE ACCELPAY PLATFORM
Access. During the Term (as defined below), Accelpay will make available to Retailer Accelpay’s software-as-a-service Retailer portal (the “Accelpay Platform”). Subject to the terms and conditions of this Agreement, Accelpay hereby grants Retailer a limited, nonexclusive and nontransferable (subject to Section 10) right, during the Term, to (i) access and use the Accelpay Platform for the Retailer’s internal business purposes. The Accelpay Platform includes any updates that are made generally available by Accelpay to other retailers at no additional charge during the Term, but expressly excludes any upgrades or additional services, features or analytics that are made available by Accelpay for an additional charge.
Limitations. Retailer will not provide access to the Accelpay Platform to any person who is not an employee or contractor of Retailer (“Authorized Users”). Retailer will be responsible and liable for all Authorized Users’ compliance with the terms and conditions of this Agreement. Except as expressly permitted hereunder, neither Retailer nor any Authorized User will, or will permit or authorize any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Accelpay Platform; (b) modify, translate or create derivative works based on the Accelpay Platform; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Accelpay Platform; (d) use the Accelpay Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party, except as otherwise expressly authorized under this Agreement; (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Accelpay Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (f) remove or obscure any proprietary notices or labels of Accelpay or its suppliers on the Accelpay Platform. Retailer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Accelpay Platform and notify Accelpay promptly of any such unauthorized access or use, and (ii) use the Accelpay Platform only in accordance with the documentation provided by Accelpay and all applicable laws, rules and regulations.
DATA AND INTELLECTUAL PROPERTY RIGHTS
Accelpay Data. Accelpay will make available to Retailer via the Accelpay dashboard certain consumer data and related purchasing information that is collected or generated in connection with consumer purchases of products using Accelpay Tools on the applicable Brand Site (such purchases, “Qualifying Purchases”, and such data, “Accelpay Data”). As between the parties, Accelpay owns the Accelpay Data. Accelpay hereby grants Retailer a nonexclusive right and license to use Accelpay Data for the sole purpose of fulfilling Qualifying Purchases. For the avoidance of doubt, Accelpay Data does not include Inventory Data. Retailer Marks. Retailer hereby grants to Accelpay a nonexclusive, non-sublicensable (except to contractors, consultants and service providers providing services on behalf of Accelpay), nontrasferable (subject to Section 10) right and license to use Retailer’s trademarks, service marks and logos (“Retailer Marks”) in connection with performing its obligations and exercising its rights under this Agreement. Accelpay will use and incorporate the Retailer Marks (a) in marketing materials, (b) on Brand Sites and (c) for purposes of sending confirmation emails to consumers that consummate Qualifying Purchases. Accelpay acknowledges and agrees that, as between the parties, Retailer retains all rights, title, and interest in and to the Retailer Marks. Retailer grants no, and reserves any and all, rights other than the rights expressly granted to Accelpay under this Agreement with respect to the Retailer Marks.Accelpay Platform. Retailer acknowledges and agrees that, as between the parties, Accelpay retains all rights, title, and interest in and to the Accelpay Platform, all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. Accelpay grants no, and reserves any and all, rights other than the rights expressly granted to Retailer under this Agreement with respect to the Accelpay Platform. Feedback. Retailer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Accelpay with respect to the Accelpay Platform. Accelpay will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Retailer hereby grants Accelpay a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
RESPONSIBILITIES
Accelpay’s Access. Retailer will provide Accelpay with information related to its fulfillment and delivery platforms (e.g., Shopify, Shipstation, Doordash, UberEats, Postmates) as necessary for Accelpay to perform any integrations required to facilitate Qualifying Purchases for Retailer. Retailer represents and warrants that it has the rights necessary to grant Accelpay such access for such purposes. Inventory Data. Retailer will provide accurate and updated inventory information and pricing for all Retailer products that will be available for purchase via the Accelpay Platform (“Inventory Data”). Such Inventory Data will be provided to Accelpay in the format and frequency specified by Accelpay. For clarity, all Qualifying Purchases are approved or rejected at the sole discretion of the Retailer. Fulfillment. Retailer will promptly review all orders placed by consumers using the Accelpay Tools for acceptance or rejection. Notwithstanding, if Retailer is unable to timely fulfill any order, it will provide written notice thereof to Accelpay within two (2) hours of Retailer receiving such order. Retailer will be responsible for fulfilling Qualifying Purchases, including: (i) packaging each product in a commercially reasonable manner complying with all applicable packaging and labeling and licensing requirements for shipments or deliveries of alcoholic beverages; (ii) shipping each product within seventy two (72) hours of the consumer’s submission of the Qualifying Order using a commercially reputable shipping provider with age verification procedures and appropriate record-keeping, or assuming responsibility for arranging an in-person delivery service with age verification procedures and appropriate record-keeping; (iii) providing Accelpay with information regarding fulfillment, status and tracking; (iv) providing a Qualifying Purchase-specific packing slip, and, if applicable, any tax invoices, within each shipment of products to consumers; and (vi identifying Retailer as the seller of each product on all packing slips or other information included or provided in connection with such products. Retailer is responsible for inputting accurate package dimensions into shipping software (Shipstation and the like). AccelPay is not responsible for label reconciliations where the wrong package dimensions were used to calculate the rate. AccelPay will make best efforts to assign accurate weights to products on the AccelPay Platform but it is ultimately the responsibility of the retailer to confirm that labels are generated based on the correct gross weight at time of fulfillment. Accelpay Responsibilities. Accelpay will use reasonable efforts to display the Inventory Data accurately via the Accelpay Tools. Consumers who make a Qualifying Purchase will be presented with, and required to agree to, Accelpay’s terms of service and privacy policy, as they may be updated by Accelpay from time to time, as well as present any Retailer terms of service and privacy policies, as applicable. Uptime. Accelpay will use reasonable efforts consistent with prevailing industry standards to provide the Accelpay Platform in a manner that minimizes errors and interruptions in accessing and using the Accelpay Platform, with a goal of 99% uptime and 1-hour response time for any support issues. Notwithstanding, the Accelpay Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Accelpay or by third-party providers, or because of other causes beyond Accelpay’s reasonable control, but Accelpay will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Accelpay’s control. Non-Solicitation. While Retailer is utilizing the AccelPay platform and for 6 months after agreement termination, Retailer shall not solicit or encourage any Client of AccelPay to leave the AccelPay platform or engage in direct online marketing or fulfillment of the AccelPay Client's products outside of the AccelPay platform for any reason. Violation will result in immediate termination of the Retailer Partnership Agreement and damages payable to AccelPay for 5 x Clients annual value to AccelPay. Retailer shall also refrain from advertising AccelPay Clients' products online at lower prices than Clients' preferred DTC pricing without prior written approval.
FEES; PAYMENT TERMS
Payment for Qualifying Purchases. Accelpay will pay to Retailer all amounts collected for each Qualifying Purchase within a commercially reasonable amount of time following the delivery of the products that are the subject of the Qualifying Purchase. Fees. Retailer agrees to pay to Accelpay all fees identified on the Order in accordance with the terms set forth therein and herein. Unless otherwise set forth in the Order, within thirty (30) days of the end of each calendar month during the Term, Accelpay will provide Retailer with an invoice for all transaction fees due in connection with the Qualifying Purchases placed during such month (such invoice, the “Transaction Fee Invoice”). Unless otherwise set forth in the Order, Retailer will pay Accelpay the amounts specified on the Transaction Fee Invoice within thirty (30) days of the date thereof. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Retailer will pay all reasonable expenses of collection. Retailers have 60 days from order fulfillment date to dispute the accuracy of a shipping rate or transaction value in the AP Reconciliation Report. Disputes are to be in the form of an email addressed to accounting@accelpay.io and should include the relevant statement, specific order details, and supporting documentation to be considered valid.
Net of Taxes. All amounts payable by Accelpay to Retailer hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively "Taxes"). Accelpay in it's function as a "Marketplace Facilitator" will be responsible for tax remittance to relevant authorities on transactions on the Accelpay platform.
TERM, TERMINATION
Term. The initial term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order, unless earlier terminated as set forth herein (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional periods of the same duration (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least sixty (60) days’ prior to the end of the then-current term. Termination; Effect of Termination. In addition to any other remedies it may have, either party may terminate this Agreement for any reason or no reason upon thirty (30) days’ prior written notice to the other party Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Accelpay to provide access to the Accelpay Platform will immediately terminate and (a) Retailer will cease use of the Accelpay Platform; and (b) each party will return or destroy all copies or other embodiments of the other party’s Confidential Information. Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 2.1(b), 2.1(c), 2.2, 2.3, 2.4, 4, 5.2, 5.3, 6, 7.2, 8, 9 and 10 will survive.
CONFIDENTIALITY
As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Accelpay’s Confidential Information includes, without limitation, the Accelpay Platform, Accelpay Data and the terms of this Agreement. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by written confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
REPRESENTATIONS, WARRANTIES AND DISCLAIMER
Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties; and (d) it shall perform all its obligations under this Agreement in compliance with applicable laws, rules and regulations, including holding any required licenses or permits required to fulfill its obligations hereunder. Disclaimer. RETAILER ACKNOWLEDGES THAT ACCELPAY SENDS ORDERS RECEIVED FROM CONSUMERS TO THE RETAILER FOR ACCEPTANCE OR REJECTION AND ACCELPAY IS NOT A PARTY TO ANY ACCEPTED PURCHASES. ACCELPAY DOES NOT MAKE ANY GUARANTEES AROUND THE BRANDS OR THE PRODUCTS PRODUCED BY THOSE BRANDS. ACCELPAY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, SAFETY OR LEGALITY OF ANY PRODUCTS SOLD BY RETAILER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE ACCELPAY PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND ACCELPAY DISCLAIMS ANY AND ALL WARRANTIES. ACCELPAY DOES NOT WARRANT THAT THE ACCELPAY PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE ACCELPAY PLATFORM WILL BE UNINTERRUPTED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
LIMITATIONS OF LIABILITY
Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) RETAILER’S BREACH OF SECTION 1, (B) EITHER PARTY’S BREACH OF SECTION 6 OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF. General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) RETAILER’S BREACH OF SECTIONS 1, (B) EITHER PARTY’S BREACH OF SECTION 6 OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN 9, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY RETAILER TO ACCELPAY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
INDEMNIFICATION
Indemnification for Infringement. Accelpay will defend Retailer and the officers, directors, agents, and employees of Retailer (“Retailer Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Retailer’s authorized use of the Accelpay Platform infringes any intellectual property right of a third party. Further, Accelpay will indemnify the Retailer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Accelpay’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the Accelpay Platform by any party other than Accelpay without Accelpay’s express consent; (b) the combination, operation, or use of the Accelpay Platform with other product(s), data or services where the Accelpay Platform would not by itself be infringing; or (c) unauthorized or improper use of the Accelpay Platform. If the use of the Accelpay Platform by Retailer has become, or in Accelpay’s opinion is likely to become, the subject of any claim of infringement, Accelpay may at its option and expense (i) procure for Retailer the right to continue using the Accelpay Platform as set forth hereunder, (ii) replace or modify the Accelpay Platform to make it non-infringing so long as the Accelpay Platform has at least equivalent functionality, (iii) substitute an equivalent for the Accelpay Platform or (iv) if options (i)-(iv) are not reasonably practicable, terminate this Agreement. This Section 9.1 states Accelpay’s entire obligation and Retailer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party. Indemnification by Retailer. Retailer will defend Accelpay and the officers, directors, agents, and employees of Accelpay (“Accelpay Indemnified Parties”) against any Claims arising from (a) any use or disclosure by Retailer of the Accelpay Platform in violation of this Agreement, (b) the Retailer Marks, and (c) Retailer’s violation of applicable laws, rules or regulations, including, without limitation, laws pertaining to the sale and distribution of alcoholic beverages. Further, Retailer will indemnify the Accelpay Indemnified Parties against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Indemnification Procedure. If a Retailer Indemnified Party or a Accelpay Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section 9.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
GENERAL
Retailer agrees that Accelpay may list and/or identify Retailer’s name (including by displaying any Retailer Mark) to identify the business relationship between the parties on Accelpay’s website and in other marketing and advertising collateral. Retailer may not remove or export from the United States or allow the export or re-export of the Accelpay Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the Order and these Terms and Conditions, the terms and conditions set forth in these Terms and Conditions will govern unless expressly stated otherwise in the Order. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and sent to the addresses set forth in the Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in New York, New York and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Retailer acknowledges that any unauthorized use of the Accelpay Platform may cause irreparable harm and injury to Accelpay for which there is no adequate remedy at law.
