Merchant Partner Agreement

The Merchant Partner Agreement, including any and all applicable Order Forms (“Agreement”), is entered into by and between the Merchant listed in an Order Form (“Partner”) and Oyster Technologies, Inc. (“Oyster”), and effective as of the Effective Date referenced in such Order Form. This Agreement will apply to and govern Oyster’s provision of Partner’s access to the Program and use of any services agreed upon by the parties in connection with one or more Order Forms. If you are accessing the Program or Solution on behalf of an entity or organization that you represent: (1) all references to “Partner” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Partner. The terms and conditions set forth in any attachments or schedules referenced herein are hereby incorporated by reference into this Agreement. This Agreement becomes binding and effective on Partner upon the earliest of: (1) when Partner accesses or uses the Program or Solution, (2) when Partner clicks an “I Accept,” “Sign up” or similar button or check box referencing this Agreement, or (3) when Partner enters into an Order Form (as defined below) with Oyster.

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1. MERCHANT PARTNER PROGRAM; PARTNER RIGHTS AND OBLIGATIONS

1. Program Terms. This Agreement set forth the terms and conditions between Oyster and Partner with respect to the Program. Subject to the terms and conditions of this Agreement, Partner is enrolled in the Program and Partner may, during the term of the Agreement, hold itself out as a “Oyster Partner” and receive the Program Benefits, provided Partner is in compliance with the terms of the Agreement and all Program Requirements. For purposes of clarification, unless otherwise agreed to by the parties, Partner’s appointment as an Oyster Partner is non-exclusive. Oyster reserves the right at any time to (i) change any information, specifications, features or functions of the Program or Solutions (ii) suspend or discontinue, temporarily or permanently, any or all of the Program or Solutions, including the availability of any feature, database or content, or (iii) impose limits on certain features and Program or Solutions or restrict access to parts or all of the Program or Solutions, in each case with or without prior notice and without any liability to you or any third party. Oyster will use its commercially reasonable efforts to notify Partner of changes to the Program that, in Oyster’s reasonable opinion, have the effect of materially adverse impact on the Program. 
2. Account Registration and Security. Some or all of the Program, Solutions and certain features or functionalities, may require Partner to register an account. Partner shall provide certain registration details or other information during the account registration process, and all such information is subject to the Oyster Privacy Policy. Partner is responsible for maintaining accurate account information at all times, including a valid email address and billing information and updating such information as necessary. Once Partner has registered for an account, Partner is responsible for all activities that occur in connection with its account. Partner will treat as confidential its account access credentials and will not to disclose its account access credentials to any third-party. Partner will immediately notify Oyster if Partner has any reason to believe that its account credentials have been compromised or if there is any unauthorized use of its account or password, or any other breach of security. Partner shall be solely responsible (and Oyster will not be liable) for losses, damages, liability, expenses, and lawyers’ fees incurred arising in connection with any unauthorized use of Partner’s account, regardless of whether Partner has notified Oyster of such unauthorized use. 
3. Use of Marks. During the term of the Agreement, and subject to the terms and conditions of the Agreement, each party grants to the other party a nonexclusive, non-transferable, non-assignable, limited license to use, solely for activities permitted under the Program, the Marks it provides or makes available to the other party in connection with the Program. Each party will comply with the other party’s branding and logo usage requirements and guidelines for its Marks. Neither party will use the other party’s Marks to imply the other party’s endorsement, sponsorship, or affiliation, except as permitted by the Program Guide, or to disparage the other party or its products or services. All goodwill in a Mark will inure to the benefit of the party that provides or makes available the Mark. Each party will promptly correct any deficiencies in its use of the other party’s Marks after notice.
4. Customer Personal Data. Each party will comply with the Personal Data (Privacy) Ordinance and will treat personal information collected from individuals in accordance with any applicable Laws, rules, regulations, or guidelines, relating to such personal information.
5. License. With respect to any Solutions provided or made available to Partner pursuant to the Agreement or as a participant in the Program, Oyster grants to Partner, during the term of the Agreement, a nonexclusive, non-transferrable, revocable, limited license to access and use the Solutions for the purpose of directing consumers to Oyster services during the Integration Point or promoting Oyster products and services by other means, as specified by Oyster. Partner’s use of the Solutions must not violate any applicable laws, including (but not limited to) export control laws and regulations. Additionally, unless expressly permitted by the Agreement or by law, Partner may not: (a) reverse engineer, decompile, or disassemble any Solution, or try to do so; (b) run, upgrade or downgrade, or transfer parts of a Solution separately at different times or on different devices; (c) install, use, or distribute other software or technology in any way that makes Oyster’s intellectual property or technology subject to any other license terms; (d) work around technical limitations in a Solution or restrictions in Solution documentation; (e) sell, rent, lease, sublicense, distribute, or lend any Solutions to others, in whole or in part, or (f) host Solutions for use by others. Partner further represents and warrants that (g) it will only recommend Oyster products and services for uses that are consistent with Oyster’s available functionality; (h) conduct business in a manner which reflects favorably on the services, goodwill, and reputation of Oyster, and (i) avoid deceptive, misleading, false or unethical practices and comply with all applicable laws. Partner agrees to indemnify, defend, and hold harmless Oyster for any third party claims, expenses, or damages arising out of Partner’s breach of this Section 2(d). To the extent Oyster and Partner enter into additional agreements or terms and conditions with respect to access and use of a particular Solution, those other agreements or terms and conditions (as the case may be) and not the terms and conditions of the Agreement governs such access and use. Oyster may deny Partner access to all or any part of the Program or any Solution, or terminate Partner’s account with or without prior notice if Partner engages in any conduct or activities that Oyster determines, in its sole discretion, violate this Agreement or the rights of Oyster or any third party, or is otherwise inappropriate.
6. Partner Compensation. Partner shall incorporate or integrate into the Solution into its Integration Point, in the manner instructed by Oyster. For each consumer that is (i) referred to Oyster via the Solution in Partner’s Integration Point, (ii) completes the account activation process and is qualified for the insurance policy offer (“Policy”) within 30 days, and (iii) is verified by Oyster (each, a “Referred Consumer”), Partner shall be entitled to receive a referral fee, as specified in the Order Form. For clarity, Partner is not entitled to any referral fees related to revenue from support or services provided by Oyster, any renewals, upgrades or additional products purchased by the consumer after the first year of the Policy, or payment for the Policy beyond the first year. Partner understands and acknowledges that failure to integrate or incorporate the Solution in the manner instructed by Oyster means that Oyster may not be able to track or verify if a consumer is a Referred Consumer, and shall not be obligated to pay related referral fees to Partner.
7. Oyster Property. No implied licenses or use rights are provided under the Agreement; licenses and use rights are those expressly stated in the Agreement, and Oyster reserves all other rights to the Oyster Property. As between Partner and Oyster, Oyster owns all right, title, and interest in and to the Oyster Property.
8. Feedback. Either party may provide Feedback to the other party. Feedback is voluntary and, even if designated as confidential, the party receiving Feedback may use it for any purpose without obligation of any kind. The party receiving Feedback will not disclose the source of Feedback to any third party without the consent of the party providing the Feedback. Unless the parties specifically agree in writing, Feedback will not create any confidentiality obligation on the party receiving the Feedback.
9. Prohibited Actions. Partner shall not (a) discuss specific insurance policy terms and conditions with consumers and (b) act as an insurance producer without having authority to do so by virtue of a license.

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2. CONFIDENTIALITY

1. Existing NDA. If the parties have entered into a non-disclosure agreement, the terms and conditions of that agreement and not the terms and conditions set forth in this Section 2 and Section 3(e) (Destruction of Confidential Information) below apply with respect to the subject matter of confidentiality and non-disclosure in connection with the Program.
2. Confidential Information. “Confidential Information” means non-public information in any form that is marked as “confidential” or that a reasonable person should understand is confidential. Confidential Information does not include information that: (a) becomes publicly available without a breach of a confidentiality obligation; (b) was received lawfully from another source without a confidentiality obligation; or (c) is independently developed.
3. Protection of Confidential Information. Each party will take reasonable steps to protect the other party’s Confidential Information. A party will only use the other party’s Confidential Information as part of the parties’ business relationship. Neither party will disclose Confidential Information to third parties. A party may only share Confidential Information with a party’s Representatives on a need-to-know basis, under nondisclosure obligations at least as protective as the Agreement. Each party remains responsible for the use of Confidential Information by its Representatives. A party must promptly notify the other party if it discovers any unauthorized use or disclosure of the other party’s Confidential Information by the first party or its Representatives.
4. Disclosure Required by Law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party, if legally permissible, so that the other party can seek a protective order.
5. Residual Information. Neither party is required to restrict its Representatives in other work assignments if they have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under the Agreement or trade secret law.
6. Duration of Confidentiality Obligations. The confidentiality obligations under the Agreement apply for a period of two (2) years after a party receives the Confidential Information.

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3. TERM AND TERMINATION

1. Term. The term of the Agreement begins on the Effective Date and extends unless terminated in accordance with this Section 3.
2. Termination for Convenience. Partner may terminate the Agreement for its convenience by uninstalling the Solution(s).
3. Termination for Cause. Either party may terminate the Agreement due to the other party’s material breach of the Agreement that is not cured within thirty (30) days after the non-breaching party provides written notice of the breach. Either party may terminate the Agreement immediately if the other party (a) terminates its business operations; (b) becomes insolvent; (c) suffers the appointment of a receiver or makes an assignment for the benefit of a creditor; or (d) enters into any voluntary or involuntary bankruptcy proceedings. In addition, Oyster may terminate the Agreement immediately if (i) Oyster discovers that Partner misrepresented, omitted, or falsified any information or documentation provided to Oyster; (ii) in Oyster’s reasonable discretion, Partner engages in conduct that could damage or disparage the reputation or goodwill of Oyster, its personnel, or the Solution or Program or otherwise harms or causes a loss of business or revenue to Oyster; (iii) Partner violates any applicable laws; or (iv) as otherwise provided in the Agreement. Any termination by Oyster in accordance with the Agreement will be without cost or penalty.
4. Termination of Licenses. Upon termination of the Agreement, all licenses granted under the Agreement terminate immediately.
5. Destruction of Confidential Information. Upon termination of the Agreement, each party will immediately destroy all Confidential Information, including all copies thereof, of the other party then in each party’s possession or control. 
6. Survival. The following sections will survive the termination of the Agreement: Sections 1(e) (Oyster Property), 1(f) (Feedback), 2 (Confidentiality), 4 (Warranties and Disclaimers), 6 (Definitions), and 7 (Miscellaneous).

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4. WARRANTIES AND DISCLAIMERS

1. Warranties. Each party represents and warrants to the other party that at all times during the term of the Agreement: (a) it has and will have all requisite corporate power and authority to execute the Agreement, to perform its obligations under the Agreement, and to consummate the transactions contemplated by the Agreement; (b) it has all rights necessary or appropriate to grant to the other party the rights granted under the Agreement; and (c) it is not presently under, nor will it enter into, any agreement, commitment, understanding or other obligation, whether written or oral, that is inconsistent with or in conflict with the Agreement or would in any way prevent, limit, or otherwise impair its performance under the Agreement.
2. Disclaimers. Except for express warranties made by Oyster in Section 4(a) above, OYSTER HEREBY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, AND OYSTER PROVIDES THE PROGRAM AND THE OYSTER PROPERTY “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND.

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5. LIMITATION OF LIABILITY

1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION PRODUCTS LIABILITY, STRICT LIABILITY, AND NEGLIGENCE), OR ANY OTHER THEORY, AND WHETHER OR NOT A PARTY KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL OYSTER’S AGGREGATE LIABILITY TO PARTNER ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PROGRAM FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION PRODUCTS LIABILITY, STRICT LIABILITY, AND NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED IN THE AGREEMENT.

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6. DEFINITIONS

1. “Affiliate” means any legal entity that a party owns, that owns a party, or that is under common control with a party, where “control” and “own” mean possessing 50% or greater interest in an entity and the right to direct its management.
2. “Agreement” means the (a) Program Agreement and (b) these Program Terms and the Program Policies, each of which is incorporated by reference into the Program Agreement.
3. “Integration Point” means any point at which a consumer makes purchase from Partner, such as online via an e-commerce site or platform made available Partner or in-person payment at brick-and-mortar locations. 
4. “Confidential Information” is defined in Section 2(b) above.
5. “Feedback” means a comment or suggestion volunteered about the other party’s business, products, or services.
6. “Order Form” means a separate order, checkout page, or online registration (a) completed by Partner online at the Oyster website and accepted by Oyster or (b) executed by Oyster and Partner. 
7. “Oyster Property” means the Solution, the Oyster Marks, and Confidential Information of Oyster, and all intellectual property in and to the Solution(s), the Oyster Marks, and the Confidential Information of Oyster.
8. “Marks” means trademarks and service marks, trade dress, trade names, corporate names, designs, slogans, domain names, proprietary logos or indicia, and other source or business identifiers.
9. “Modification” is defined in Section 7(a) below.
10. “Program” means the Oyster Merchant Partner Program; for purposes of clarification, Oyster may, in its sole discretion, change the name of the Program with reasonable prior notice.
11. “Program Benefits” means the benefits available to Partner under the Program.
12. “Program Policies” means any other policies and documentation for the Program made available by Oyster.
13. “Program Requirements” means the additional requirements for the Program set forth in the Program Policies.
14. “Relationship Manager” means the person designated by Partner who will, on behalf of Partner, manage all aspects of the relationship between Oyster and Partner under the Agreement and with respect to the Program.
15. “Representatives” means an employee, contractor, advisor, or consultant of a party or one of its Affiliates.
16. “Solution” means the applications, widgets, source code, QR codes, or other functionality, provided by Oyster. 

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7. MISCELLANEOUS

1. Program Changes. Oyster reserves the right, at its sole discretion, to modify the Agreement from time to time to accommodate changes to the Program (a “Modification”). Oyster may provide notification of Modifications to Partner. Oyster will use commercially reasonable efforts to provide a reasonable notice period for each Modification prior to the Modification becoming effective. Partner’s continued participation in the Program constitutes binding acceptance of Modifications. Partner’s sole and exclusive right to reject a Modification is to terminate the Agreement pursuant to Section 3(b) (Termination for Convenience) above.
2. Amendment. Except as otherwise provided in Section 7(a) above, the Agreement may not be changed, except by a writing signed by both parties.
3. Waiver. Any waiver of a provision of the Agreement or of a party’s rights or remedies under the Agreement must be in writing and must expressly state that it is a waiver of the applicable provision(s) of the Agreement to be effective.
4. Independent Contractors. The parties to the Agreement are independent contractors and neither party will have any authority to create any binding obligation on behalf of the other party. Partner and Oyster may each develop products independently without using the other’s Confidential Information or intellectual property. Except as specifically set forth in the Agreement, each party will bear its own costs for its activities in connection with the Agreement and the Program.
5. Notices. All notices, acceptances, approvals, and other communications provided pursuant to the Agreement will be in writing, which may be provided electronically, and deemed duly given when: (a) sent via electronic mail by Partner to hi@withoyster.com, (b) sent via electronic mail by Oyster to the electronic mail address submitted by Partner on the most current Order Form, or (c) captured in the Solution or through other electronic means (e.g., “click-to-accept” radio buttons). Notices will be deemed received one business day after being sent or captured in accordance with the foregoing. .
6. Assignment. Neither party shall assign this Agreement without the prior written consent of the other party; provided that Cana may assign this Agreement without the need for such prior written consent to its affiliate, in the event of a sale of all or substantially all of its assets, business or a majority of its voting securities, or in the event of any merger or other change of control. Any assignment or other transfer in violation of this Section 7(g) will be null and void. The Agreement is binding on the parties and their respective permitted successors and assigns.
7. No Third Party Beneficiaries. The Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
8. Severability. If any part of the Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.
9. Interpretation. Headings of sections in the Agreement are solely for convenience of reference and are not part of the Agreement. Where context admits in the Agreement, the singular includes the plural and vice versa.
10. Governing Law and Venue. The Agreement will be governed by and construed in accordance with the laws of the State of California and federal laws of the United States. Any legal action or proceeding will be brought exclusively in the federal or state courts located in the Northern District of California. The parties consent to personal jurisdiction and venue there. This choice of venue does not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to the Agreement.
11. Entire Agreement. The Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all prior communications, representations, understandings, and agreements, whether written or oral.