Merchant Terms & Conditions

MERCHANT TERMS AND CONDITIONS 

Last updated: June 9, 2022 

These Merchant Terms and Conditions apply to Merchant’s access to and use of: (1) our mobile payment solution (the “Mobile Payment Solution”) that enables users (“Customer”) of the Tabbi™ mobile application (the “App”) to open, review, and pay their bar or restaurant tab with their compatible mobile device; (2) our Tabbi™ customer relationship management solution; (3) certain software related to the Mobile Payment Solution and Tabbi™ that we make available to Merchant from time to time (the “Tabbi™ Software”); and (4) any other services, technology, content, data, and features made available by us (together with the Mobile Payment Solution, and the “Tabbi™ Platform”) pursuant to these Merchant Terms and Conditions. In these Merchant Terms and Conditions, “Tabbi™,” “we,” “us,” and “our” refer to Tabbi, Inc. (dba Tabbi) and our affiliates, successors, and assigns and “Merchant” refers to any user of the Tabbi™ Platform. Tabbi™ and Merchant are individually referred to in these Merchant Terms and Conditions as a “Party” and collectively as the “Parties.” 

In conjunction with Merchant’s access to and use of the Tabbi™ Platform, Merchant may be subject to additional terms, rules, policies, and conditions, including, but not limited to, purchase orders, platform specifications, end user licnese agreements for any portion of the Tabbi™ Platform, or any agreement that specifically refers to or links to these Merchant Terms and Conditions (collectively, “Additional Terms”), which are hereby incorporated by reference in these Terms. In the event of a conflict between these Terms and any Additional Terms, the Additional Terms will control. Together, these Merchant Terms and Conditions, along with any applicable Additional Terms are collectively referred to as the “Terms.” 

Merchant agrees to abide by the portions of the Tabbi™ User Terms and Conditions and (https://www.tabbi.app/terms/) Tabbi™ Privacy Policy (https://www.tabbi.app/privacy/) that apply to “Establishments.” 

1. ACCESS. 

By accessing or using the Tabbi™ Platform in any way, Merchant agrees to be bound by these Terms. If Merchant does not agree to all the terms and conditions of these Terms, Merchant may not access or use the Tabbi™ Platform. We may, without prior notice or liability to Merchant, modify any portion of the Tabbi™ Platform by adding or removing features and functionalities. Except as otherwise expressly stated by us, Merchant’s access to and use of the Tabbi™ Platform are subject to, and constitute Merchant’s acceptance of, the version of these Terms in effect at the time of Merchant’s access or use. We may also revise these Terms from time to time in our sole discretion, subject to any law, rule, regulation, ordinance, code, or order to which a Party may be subject or under which a Party may exercise rights (“Applicable Law”). When we revise these Terms, we may notify Merchant via email, the Tabbi™ Platform, our website, on a billing statement, or any other method we deem to be reasonable in the circumstances. Except as otherwise expressly stated by us, all changes to these Terms will be effective for the next billing cycle and apply to Merchant’s access to and use of the Tabbi™ Platform thereafter. Merchant is free to decide whether or not to accept a revised version of these Terms, but accepting these Terms, as revised, is required for Merchant to continue accessing or using the Tabbi™ Platform. If Merchant does not agree to these Terms or any revised version of these Terms, Merchant’s sole recourse is to terminate its access to or use of the Tabbi™ Platform. If Merchant terminates due to this Section, such termination must be made in writing and the termination will be effective immediately. 

2. LIMITED LICENSE

2.1 Subject to, and except as otherwise expressly provided by, these Terms, Tabbi™ hereby grants Merchant a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right and license to access and use the Tabbi™ Platform, including all updates, upgrades, and modifications thereto made available by Tabbi™, via download or otherwise, from time to time, solely for its intended purposes in accordance with these Terms. Merchant must follow Tabbi’s instructions with respect to the Tabbi™ Platform. Tabbi™ may host elements of the Tabbi™ Platform using its own infrastructure or it may engage a third party to host the Tabbi™ Platform on its behalf. Merchant is responsible for making all arrangements necessary for Merchant to access and use the Tabbi™ Platform, including obtaining and maintaining hardware, software, communications equipment, and network infrastructure and for paying all third-party fees incurred to access and use the Tabbi™ Platform. 

2.2 To enable Merchant’s access to and use of the Tabbi™ Platform, Merchant hereby grants Tabbi™ access to Merchant’s point-of-sale (“POS”) system so that Tabbi™ may install, update, and maintain the Tabbi™ Software on Merchant’s POS system, including any installation performed by any software installer program or application provided by Tabbi™. Merchant agrees to provide any and all assistance to Tabbi™ and its employees and representatives to complete such installation, updates, and maintenance. 

2.3 Merchant acknowledges that (i) the Tabbi™ Platform may contain other software or components that are either owned by a third party or in the public domain (“Third-Party Software”), and (ii) Tabbi™ has no proprietary interest in Third-Party Software and, as such, cannot grant Merchant a license to use Third-Party Software. Merchant’s rights in Third-Party Software are governed by and subject to the terms and conditions set forth in the applicable licenses for Third-Party Software. Merchant acknowledges and agrees to fully comply with such terms and conditions. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN SUCH TERMS AND CONDITIONS, THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS APPLY TO Tabbi™ AND ITS LICENSORS WITH RESPECT TO ANY THIRD-PARTY SOFTWARE. Tabbi™ IS NOT OBLIGATED TO PROVIDE SUPPORT SERVICES FOR THIRD- PARTY SOFTWARE UNLESS EXPRESSLY AGREED TO IN WRITING BY Tabbi™. 

3. FEES AND TAXES. 

3.1 In consideration for Merchant’s access to and use of the Tabbi™ Platform, Merchant agrees to pay the fees associated therewith. All Fees are due and payable in U.S. dollars and are non-refundable. Invoiced charges are due immediately and reoccurring charges will be due prior to the start of the new period. If applicable, credit cards will be charged prior to the start of any billing period. Unless a term is specified Additional Terms, Merchant may cancel at any time. Merchant will not be refunded any amount (pro-rated or otherwise) for the remainder of the unused billing period after cancellation. Cancellation will not release Merchant from its fee obligations. 

3.2 All Fees are exclusive of any applicable sales, excise, use, or similar taxes. Merchant must pay all such taxes either directly or to Tabbi™ or as otherwise required by Applicable Law. Merchant acknowledges and agrees that it is responsible for determining, paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with Merchant’s access to and use of the Tabbi™ Platform. We are not responsible for determining whether Merchant owes taxes in connection with Merchant’s access to or use of the Tabbi™ Platform or for collecting, reporting, or remitting taxes arising from Merchant’s access to or use of the Tabbi™ Platform, except for our own income taxes. Merchant agrees to reimburse and indemnify Tabbi™ for any taxes, penalties, and interest assessed by any taxing authority regarding amounts owed by Merchant in connection with these Terms. 

3.3 Merchant must provide complete and accurate billing and contact information to Tabbi™ and notify us of any changes to such information. Any amount not paid when due will be subject to finance charges equal to 1.5% percent of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less. Merchant will reimburse any costs or expenses, including without limitation, reasonable attorneys’ fees, incurred by Tabbi™ to collect any amount not paid when due. Further, we may, without limiting our other rights and remedies, accelerate any unpaid fee obligations so that all such obligations become immediately due and payable. 

3.4 Merchant agrees that purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Tabbi™ regarding future functionality or features. 

4. PLATFORM SUPPORT, MAINTENANCE, AVAILABILITY, AND TRAINING. 

4.1 Tabbi™ will provide Merchant with reasonable support to help resolve issues related to the Tabbi™ Platform. Merchant must promptly: (i) refer all inquiries and complaints from Customers concerning the App and the Mobile Payment Solution; (ii) provide any written documentation related to such inquiries and complaints to Tabbi™; and (iii) cooperate with Tabbi™ to resolve Customers’ inquiries and complaints to the extent necessary. 

4.2 We may need to carry out routine or urgent maintenance for the Tabbi™ Platform from time to time. We will use commercially reasonable efforts to inform Merchant of any downtime and to restore the Tabbi™ Platform as soon as reasonably practicable; provided, however, that Tabbi™ will not be liable if all or any part of the Tabbi™ Platform is unavailable at any time or for a period of time for any reason. 

4.3 Tabbi™, in its discretion, may provide written and/or electronic materials to Merchant to train its staff on the Tabbi™ Platform. In addition, Tabbi™, in its discretion, and subject to Merchant’s approval, may provide in-person, telephonic, and online training on the Tabbi™ Platform to Merchant’s staff. 

5. ADDITIONAL TERMS FOR THE MOBILE PAYMENT SOLUTION AND TABBI. 

5.1 Merchant must accept Customers’ payments using the Mobile Payment Solution, or any other part of the Tabbi™ Platform, in accordance with Tabbi™’s then-current standard operating instructions and these Terms. Merchant acknowledges that any such payments will be treated as a “card-not- present” transaction by Merchant’s payment processor, and may subject Merchant to increased fees and chargeback liability. 

5.2 Merchant must provide Customers with digital transaction receipts as required by Card Network Rules and Applicable Law. For purposes of these Terms, “Card Network Rules” mean the bylaws, rules, and other published operational and technical requirements of any payment network (e.g., Visa®, MasterCard®, American Express®, and Discover®) applicable to the Tabbi™ Platform, Merchant’s acceptance of payment cards, and a Party’s obligations under these Terms. 

5.3 Merchant may not impose any additional restrictions, conditions, or fees on Customers’ use of the App, the Mobile Payment Solution, or any other portion of the Tabbi™ Platform, or engage in any practices that discriminate against or discourage Customers’ use of the Tabbi™ Platform or otherwise cause Customers additional burden when using the Tabbi™ Platform. 

5.4 The Mobile Payment Solution or other portion of the Tabbi™ Platform may allow Merchant to select a minimum and/or default tip or gratuity that will be presented to Customers in the App. Merchant is solely responsible for distributing such gratuity to its workers and determining Merchant’s tax withholding and payment obligations relating to gratuities added to or included in Customers’ payments. 

5.5 Merchant acknowledges and agrees that Tabbi™: (i) is not a financial institution and does not provide banking or payment processing services; (ii) is not a party to the payment transactions performed by Merchant and Customers using the Tabbi™ Platform; (iii) does not hold or transmit any funds belonging to Customers or Merchants; (iv) is not liable for delays in delivery of Customers’ payments for any reason, including, but not limited to, as a result of the actions or inactions any banks, processors, card networks, or other third parties; (v) is not liable for any Customers’ payments that are not completed for any reason, including but not limited to: (a) a Customer’s payment account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of Customer’s payment account; (b) a Customer has not provided Tabbi™ with correct or updated payment account information; or (c) a Customer’s payment account has expired. 

5.6 Tabbi™ is not responsible for any overcharges, chargebacks, reversals, or other payment disputes relating to payment transactions facilitated by the Tabbi™ Platform. Tabbi™ will use commercially reasonable efforts to assist Merchant in disputing and resolving any chargebacks or reversals of Customers’ payments. 

5.7 Merchant acknowledges that promotional offer campaigns facilitated through Tabbi™ (“Offers”) are subject to certain limitations established by Tabbi™ and other third parties, from time to time, including, but not limited to, Customers’ eligibility for, and redemption of, Offers. 

6. INTELLECTUAL PROPERTY RIGHTS. 

6.1 Merchant acknowledges and agrees that the Tabbi™ Platform is protected by copyright, trademark, patent, trade secret, and other intellectual property laws. Except as expressly provided in these Terms, Tabbi™ does not grant Merchant any licenses, express or implied, to the Tabbi™ Platform or any of Tabbi™’s other intellectual property. Tabbi™ retains all rights, titles, and interest in and to the Tabbi™ Platform, including any updates, upgrades, and modifications thereto, and any associated patents, trademarks, copyrights, trade secrets, and other intellectual property rights. 

6.2 Except as expressly provided by these Terms or with Tabbi’s prior written consent, Merchant may not permit any third party to, (i) take any action that imposes or may impose (in our sole determination) an unreasonable or disproportionately large load on the Tabbi™ Platform or our infrastructure; (ii) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Tabbi™ Platform; (iii) sell, resell, rent, lease, copy, distribute, publish, display, transmit, provide access to, license or sublicense any portion of the Tabbi™ Platform to a third party; (iv) use, copy, or incorporate any Tabbi™ Platform portion, feature, function, or user interface into any other product or service; (v) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble, or otherwise attempt to derive the source code of the Tabbi™ Platform; (vi) remove, obscure, or alter any copyright notice, trademarks, logos, trade names, or other proprietary rights notices contained in the Tabbi™ Platform; (vii) use any malicious code in connection with the Tabbi™ Platform; (viii) attempt to gain unauthorized access to the Tabbi™ Platform, intellectual property or any of Tabbi’s systems or networks; (ix) use the Tabbi™ Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (x) access any portion of the Tabbi™ Platform in order to build a competitive product or service; or (xi) use the Tabbi™ Platform in violation of these Terms or any Applicable Law. We may, but are not obligated to, monitor Merchant’s use of the Tabbi™ Platform. 

6.3 Merchant may submit comments, information, questions, data, ideas, description of processes, or other information to Tabbi™ from time to time (collectively, “Feedback”). Tabbi™ may freely use, copy, disclose, license, distribute, and otherwise exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise. 

7. MARKETING AND PUBLICITY. 

7.1 Merchant hereby grants Tabbi™ a non-exclusive, non-transferable, limited, and revocable license to use Merchant’s name, logos, trademarks, service marks, and graphics in general listings of Merchants in the App, on Tabbi’s website and social media accounts, and in other print and electronic marketing materials solely to provide information about the Mobile Payment Solution. 

7.2 Tabbi™ hereby grants Merchant a non-exclusive, non-transferable, limited, and revocable license to use Tabbi™’s name, logos, trademarks, service marks, and graphics on its website and other marketing materials solely to provide information about the Mobile Payment Solution to Customers, subject to any usage guidelines provided by Tabbi™. 

7.3 Except as otherwise expressly permitted by these Terms, neither Party may use, copy, or modify any of the other Party’s name, logos, trademarks, service marks, and graphics without such other Party’s prior written approval. Each Party agrees to not use the other Party’s name, logos, trademarks, and service marks in a manner that could reasonably cause confusion as to such Party’s sponsorship or affiliation or in connection with any misleading statement. Each Party agrees to use appropriate ownership symbols (TM or SM or ®) when using the other’s trademark or service mark (see Section 7.5 for Tabbi™ marks and appropriate symbols). Each Party acknowledges that the other Party’s name, logos, trademarks, service marks, and graphics are and will remain the exclusive property of such other Party. 

7.4 Each Party must cease using the other Party’s name, logos, trademarks, service marks, and graphics upon termination of these Terms or if otherwise directed to do so by such other Party. 

7.5 Current Tabbi™ marks include: Tabbi™ and the Tabbi™ Logos. Usage note: if “Tabbi” is used as a trade name (a substitute for Tabbi, Inc.) no symbol is necessary. However, if it is as used as an adjective (“Tabbi™ Platform”) then the symbol should be used.   

8. POS DATA. 

To the maximum extent permitted by Applicable Law, Merchant hereby grants Tabbi™ and its affiliates, successors, and assigns an irrevocable, non-exclusive, transferable, and assignable license and right to collect certain transaction data from Merchant’s POS system (“POS Data”) as long as Merchant accesses or uses the Tabbi™ Platform. POS Data includes information about the venue, SKU-level data on items purchased by Merchant’s customers, amounts paid by Merchant’s customers, and metadata on payment methods used by Merchant’s customers (such as payment card type, payment card issuer, and the last four digits and expiration date of the payment card). To the maximum extent permitted by Applicable Law, Merchant also hereby grants Tabbi™ and its affiliates, successors, and assigns an irrevocable, non-exclusive, transferable, assignable, and perpetual license and right to use and retain the POS Data for any lawful purpose, including, but not limited to: (i) as necessary to provide, maintain, and improve the Tabbi™ Platform; (ii) to provide Offers to Customers; and (iii) to perform analytics for third parties. Merchant is solely responsible for the accuracy, quality and legality of POS Data and the means by which Merchant acquired such POS Data. Merchant is solely responsible for independently maintaining and backing up the Merchant’s copy of Customer and transactional data and shall maintain, back up, and create duplicate copies of its records and POS Data, as it deems necessary. Tabbi™ is not required to maintain any backup or duplicate copies of any Merchant’s POS Data. 

9. PLATFORM DATA. 

9.1 Tabbi™ exclusively owns all right, title, and interest in and to any and all data (other than the POS Data) that is provided to, obtained by, or derived by Tabbi™ in connection with the App and the Tabbi™ Platform (“Platform Data”), including, but not limited to, data regarding Customers and their use of the App, and, subject to Tabbi’s Privacy Policy and Applicable Law, may use Platform Data for any lawful purpose. To the extent Merchant receives Platform Data in connection with its access to or use of the Tabbi™ Platform, Merchant may only use Platform Data as necessary to perform its obligations under these Terms, except as expressly provided in Section 9.2 or as otherwise expressly required by Applicable Law. Without limiting the foregoing, Merchant may not use Platform Data for any other purpose, including, but not limited to, marketing to or communicating with Customers other than through the Tabbi™ Platform. 

9.2 Notwithstanding Section 9.1 and except as otherwise provided in any applicable Additional Terms, Tabbi™, in its sole discretion, may from time to time grant, convey, sell, or otherwise transfer to Merchant a non-exclusive limited license to use certain portions of the Platform Data, such as aggregated, statistical, and/or anonymous data. 

9.3 Merchant must: (i) restrict disclosure of Platform Data to its employees, officers, directors, and agents solely on a “need to know” basis in accordance with these Terms; (ii) advise its employees, officers, directors, and agents of their confidentiality obligations; (iii) require its employees, officers, directors, and agents to protect and restrict the use of Platform Data; (iv) use the same degree of care to protect Platform Data as it uses to safeguard its own confidential information of similar importance, but in no event less than a reasonable degree of care; and (v) establish procedural, physical, and electronic safeguards to prevent the compromise or unauthorized disclosure of Platform Data. In the event there is a breach of security of Merchant that results or may result in unauthorized disclosure of Platform Data, Merchant must immediately notify Tabbi™ of such breach, the nature of such breach, and the corrective action taken to respond to such breach and must take all steps, at its own expense, to immediately limit, stop, or otherwise remedy such misappropriation, disclosure, or use. Merchant is solely responsible for any Platform Data in its possession or under its control and must bear the risk of loss resulting from its possession, storage, transmission, and use of such Platform Data. 

9.4 Within 30 days of the termination of these Terms or at any time upon Tabbi™’s request, Merchant must return to Tabbi™ (or destroy if so directed by Tabbi™) all Platform Data in its possession or in the possession of any employee or agent of Merchant, as directed by Tabbi™. 

10. REPRESENTATIONS AND WARRANTIES.
In addition to any other representations and warranties set forth in these Terms, Merchant represents and warrants to Tabbi™ that, at all times: (i) if applicable, Merchant is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation or incorporation; (ii) if applicable, Merchant is qualified to transact business and in good standing in each jurisdiction in which it operates; (iii) Merchant has all requisite right, power, and authority to accept and agree to these Terms and perform its obligations and grant the rights, licenses, and authorizations granted by Merchant hereunder; (iv) Merchant’s employees, officers, directors, and agents accessing or using the Tabbi™ Platform are duly authorized to access and use the Tabbi™ Platform and legally bind Merchant to these Terms; (v) Merchant and all of its employees, officers, directors, and agents will comply with these Terms, all Applicable Law, Tabbi™ User Terms and Conditions, Tabbi™’s Privacy Policy, and applicable payment industry standards, including, but not limited to, the PCI DSS and Card Network Rules, EMV as such standards may be amended from time to time, in the performance of Merchant’s obligations and exercise of Merchant’s rights under these Terms; and (vi) Merchant’s performance under these Terms shall not violate Applicable Law or any agreement to which it is a party or by which it is bound. 

11. SUSPENSION AND TERMINATION. 

11.1 We may, in our sole discretion, suspend, limit, or terminate Merchant’s access to or use of the Tabbi™ Platform for any reason, without notice or liability to Merchant. Merchant may stop using the Tabbi™ Platform by providing 30 days’ prior written notice via email to support@tabbi.app. Upon the termination of these Terms, Merchant must cease all use of the Tabbi™ Platform. 

11.2 Termination of Merchant’s access to and use of the Tabbi™ Platform will not affect any of Tabbi™’s rights or Merchant’s obligations arising under these Terms prior to such termination. Provisions of these Terms that, by their nature, should survive termination of Merchant’s access to and use of the Tabbi™ Platform will survive such termination. 

12. DISCLAIMERS.

12.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TABBI™ PLATFORM IS PROVIDED TO MERCHANT HEREUNDER STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND TABBI™ HEREBY DISCLAIMS ANY AND ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, ACCURACY OF DATA, NON-INFRINGEMENT, NON- INTERFERENCE, AND FITNESS FOR A PARTICULAR PURPOSE. 

12.2 WITHOUT LIMITING THE FOREGOING, TABBI™ MAKES NO WARRANTY THAT (I) THE TABBI™ PLATFORM WILL MEET MERCHANT’S REQUIREMENTS; (II) THE TABBI™ PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE TABBI™ PLATFORM WILL BE ACCURATE OR RELIABLE; OR (IV) ANY ERRORS IN THE TABBI™ PLATFORM WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TABBI™ OR ANY OF OUR AUTHORIZED REPRESENTATIVES WILL CREATE ANY WARRANTY. 

13. LIMITATION OF LIABILITY. 

13.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TABBI™, OUR AFFILIATES, OR OUR OR THEIR EMPLOYEES, OFFICERS, DIRECTORS, OR AGENTS BE LIABLE TO MERCHANT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, INCLUDING DAMAGES OR COSTS INCURRED AS A RESULT OF A LOSS OF TIME, SAVINGS, PROPERTY, PROFITS, BUSINESS, CONTRACTS, REVENUE, ANTICIPATED SAVINGS, DATA, OR GOODWILL, ARISING OUT OF OR RELATED TO THESE TERMS OR THE TABBI™ PLATFORM, EVEN IF TABBI™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

1 3.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, TABBI™’S AGGREGATE LIABILITY TO MERCHANT FOR ANY CLAIM OR SERIES OF CLAIMS AND REGARDLESS OF THE FORM OF ACTION(S) WILL BE LIMITED TO THE GREATER OF: (I) THE TOTAL AMOUNT OF FEES (IF ANY) ACTUALLY PAID BY MERCHANT UNDER THESE TERMS FOR THE 12- MONTH PERIOD PRIOR TO WHEN THE CLAIM WAS BROUGHT or (II) $1,000. 

13.3 IN ADDITION TO AND WITHOUT LIMITING ANY OF THE FOREGOING, TABBI™ WILL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF TERRORISM, LABOR CONDITIONS, POWER FAILURES, INTERNET DISTURBANCES, OR SERVICES OR SYSTEMS CONTROLLED BY THIRD PARTIES. 

13.4 THE PARTIES AGREE THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS IN THESE TERMS ARE ESSENTIAL ELEMENTS OF THESE TERMS AND REPRESENT A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES. In particular, Merchant understands that we would be unable to provide the Tabbi™ Platform to Merchnat except on these terms and agrees that these Terms will survive and apply even if any limited remedy specified in these Terms is found to have failed its essential purpose. 

14. INDEMNITY. 

Merchant must indemnify, hold harmless, and (at our request) defend Tabbi™, our affiliates, and our and their respective employees, officers, directors, and agents from and against all damages, claims, suits, costs, fines, penalties, liabilities, and expenses (including reasonable attorneys’ fees) that arise from a third party’s claim arising out of or on account of or resulting from: (i) Customer’s experience with Merchant, including but not limited to any goods or services Merchant provided by Merchant; (ii) any dispute between Merchant and Customer; (iii) Merchant’s breach or alleged breach of these Terms; (iv) violation of Applicable Law, PCI DSS, EMV or the Card Network Rules by Merchant or its employees, officers, directors, or agents; (v) infringement of any third-party intellectual property rights by Merchant or its employees, officers, directors, or agents; (vi) Merchant’s tax obligations; and (vii) the gross negligence, fraud, or willful misconduct of Merchant or its employees, officers, directors, or agents or any other actions or omissions resulting in liability to us. Tabbi™ reserves the right to assume the exclusive defense and control of any matter subject to indemnification by Merchant, in which event Merchant will cooperate in asserting any available defenses. 

15. CONFIDENTIAL INFORMATION. 

Each Party (each a “Discloser”) may disclose to the other party (each a “Recipient”) information pertaining to the Tabbi™ Platform (“Purpose”) that the Discloser considers confidential (“Confidential Information”). Recipient may use Confidential Information only for the Purpose. Recipient must use a reasonable degree of care to protect Confidential Information and to prevent any unauthorized use or disclosure of Confidential Information. Recipient may share Confidential Information with its employees, directors, agents or third party contractors who need to know it and if they have agreed with either party in writing to keep information confidential. Confidential Information does not include information that: (a) was known to Recipient without restriction before receipt from Discloser; (b) is publicly available through no fault of Recipient; (c) is rightfully received by Recipient from a third party without a duty of confidentiality; (d) is independently developed by Recipient; or (e) relates to demographic information of the Customer or any other information covered by Tabbi™’s Privacy Policy. A party may disclose Confidential Information when compelled to do so by law if it provides reasonable prior notice to the other party, unless a court orders that the other party not be given notice. This Section will continue for 4 years after the Terms expire or are cancelled. The breach of this Section will cause irreparable harm to the other party and monetary damages may not be a sufficient remedy for an unauthorized disclosure of the Confidential Information. If the breaching party discloses the Confidential Information in violation of this agreement, the other party may, without waiving any other rights or remedies and without posting a bond or other security, seek an injunction, specific performance, or other equitable remedy to prevent competition or further disclosure, and may pursue other legal remedies. 

16. GENERAL. 

16.1 Third-Party Payment Processors and POS Companies.
Certain third parties, including, without limitation, Merchant’s payment processor or POS system vendor, may present these Terms (including Additional Terms) to Merchant for Merchant’s review and acceptance. Such third parties are independent contractors and have no power to bind Tabbi™ or incur obligations on its behalf. 

16.2 Export.
Merchant may not export or re-export any Tabbi™ Software or other technology or materials related to the Tabbi™ Platform, either directly or indirectly, without Tabb’s prior written consent and any required license from the appropriate governmental agency. Merchant will not use the Tabbi™ Platform in the European Union. 

16.3 Audit.
Upon reasonable notice to Merchant, Tabbi™ may, either itself or through an third-party auditor, enter Merchant’s premises during Merchant’s normal business hours to inspect and audit Merchant’s POS system, computer systems, network, and records solely to verify Merchant’s compliance with these Terms. 

16.4 Governing Law and Jurisdiction.
The validity, interpretation, construction, and performance of these Terms will be governed by the laws of the State of South Carolina, without giving effect to the principles of conflict of laws. The federal and state courts located in Charleston County, South Carolina will be the exclusive venue for any dispute or claim between the Parties, or against any agent, employee, successor, or assign thereof, arising out of or in connection with these Terms, and the Parties hereby consent to the personal jurisdiction of those courts for such purposes. 

16.5 Relationship of Parties.
No agency, joint venture, partnership, trust, or employment relationship is created between Tabbi™ and Merchant by way of these Terms. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. 

16.6 Assignment.
Merchant may not transfer or assign these Terms or any license set forth herein, in whole or in part, without Tabbi™’s prior written consent. Tabbi™ may assign these Terms without restriction and without Merchant’s prior consent. Any attempted transfer or assignment by Merchant without our prior written consent will be null and void. These Terms will be binding on all permitted assignees. 

16.7 Severability.
If any part or provision of these Terms are found to be unenforceable, such part or provision may be modified to make the Terms, as modified, legal and enforceable. The balance of the Terms shall not be affected. 

16.8 Waiver.
The failure by us to enforce at any time any of the provisions of these Terms, to exercise any election or option provided herein, to require at any time Merchant’s performance of any of the provisions herein, or to enforce our rights under these Terms or Applicable Law will not in any way be construed as a waiver of such provisions or rights. The express waiver by us of any provision, condition, or requirement of these Terms will not constitute a waiver of any future obligation to comply with such provision, condition, or requirement. 

16.9 Entire Agreement.
These Terms (which include Merchant Terms and Conditions along with any applicable Additional Terms) constitute the entire agreement between Tabbi™ and Merchant, and supersede and replace any prior representations, agreements, negotiations, and understandings between Tabbi™ and Merchant, whether written or oral, relating to the Tabbi™ Platform. These Terms may be revised only by Tabbi™ in accordance with Section1. 

16.10 Notices.
Tabbi™ will send all notices and other communications regarding the Tabbi™ Platform to Merchant at the email address Merchant provided to Tabbi™ during signup, as may be updated by Merchant from time to time by contacting us at support@tabbi.app. Merchant will be considered to have received a notice from us under these Terms when we send it to the email address we have in our records for Merchant or when we mail such notice to the mailing address Merchant provided, as may be updated by Merchant from time to time by emailing support@tabbi.app. Except as otherwise provided in these Terms, all notices to Tabbi™ that are intended to have a legal effect must be in writing and delivered via email to support@tabbi.app.