Terms and Conditions
The following sets forth the Terms and Conditions applicable to each Insertion Order to which these Terms and Conditions are linked from or otherwise referenced, which Insertion Order has been executed between Merchant (as defined in the Insertion Order) and Area 15 Las Vegas LLC (together with its affiliates, “Company”). Together with the Insertion Order, these Terms and Conditions constitute a binding agreement (collectively, “Agreement”) governing the subject matter of the Insertion Order and are incorporated herein by reference into each Insertion Order. Capitalized terms used but not defined have the meanings set forth in the Insertion Order.
1. SERVICE.
a. Merchant hereby grants to Company and its designees the right, authorization, and license to advertise, publicize, announce, market, promote, offer and sell vouchers (“Vouchers”) redeemable for the Product (“Services”). Company makes no guaranty or warranty as to (i) the specific volume of Vouchers which will be sold by Company, if any (or specific volume of Vouchers presented and redeemed with Merchant for the Product) or (ii) whether any will be sold or presented/redeemed. The determination to purchase a Voucher (whether as part of a bundle or otherwise) and the determination on whether to present and redeem the Voucher with Merchant for the Product is at the sole discretion of the purchaser thereof. Nothing contained herein shall constitute an exclusive arrangement or agreement between the parties, and Merchant and Company may retain other parties to perform similar services (or in the case of Company, may deliver for such other parties services similar or the same as the Services being delivered by Company hereunder).
b. When a customer purchases a Voucher from Company, Company shall issue such Customer a Voucher redeemable for the corresponding Product. Upon presentment by a customer of the Voucher to Merchant for redemption, Merchant shall verify the validity and authenticity of each Voucher (which may be by unique code or digital scan), and if verified as to validity/authenticity, Merchant shall accept and fulfill the Voucher as a valid Product purchase and deliver such customer all the rights, privileges, entitlements, and benefits in consideration for such Product that is afforded a customer that purchases the Product directly from Merchant. Merchant agrees that all Vouchers shall be honored and redeemable by a customer holder upon presentment, and shall not seek further payment, fees, charges or consideration therefor from such customer.
c. Merchant agrees that (i) Company may charge a customer administrative fee and charge on each sale of a Voucher, including transaction fees, processing charges, event fees, and similar service fees and charges in its sole discretion (collectively, “Service Fees”) on the sale of the Voucher and all right, title and interest in the Service Fees (and the price collected in consideration for the Voucher) shall be solely owned by and be property of Company, (ii) Company may bundle, combine and package a Voucher for the Product with other goods, products and services sold by Company or third parties (collectively, “Company Bundle”) and all right, title and interest in revenue and receipts attributed to the sale of Company Bundle shall be solely owned by and be property of Company, (iii) Company may, in its sole discretion, remove any good, product and service included in a Company Bundle (including a Voucher for a Product) or cease offering the Voucher for sale altogether whether or not as part of a Bundle (permanently or temporarily) at any time and for any reason, and Company shall have sole authority and control over the terms and conditions of a Company Bundle, including the price thereof or whether a Voucher is included in a Company Bundle, and (iv) subject to the terms below, Company may collect sales, use, excise, or other similar taxes or governmental fees, as and if applicable, including as to any Company Bundle and Company will be authorized to remit any and all such taxes it collects to the appropriate taxing authorities, as may be required by applicable law. Notwithstanding anything to the contrary, (A) the parties shall cooperate and use their reasonable efforts to create data interoperability and data transmission such that information concerning a physical “Voucher” purchased and Voucher for a “Product” redeemed will be connected through a data feed between the parties, and (B) Merchant shall be solely and exclusively responsible for the payment of all taxes, including, without limitation, any amounts relating to the sale of Product/Vouchers, including Live Entertainment Tax or LET (where applicable) and any and all other taxes that may arise out of the Product/Voucher.
d. Customer cancellations and/or refunds for purchases of Vouchers made pursuant to this Agreement must be made through Company. In other words, Merchant may only accept cancellations for Vouchers through Company, not directly from a customer. In the event customer cancels their purchase for a Voucher through Company, Company shall terminate the applicable customer’s Voucher which shall be voided, and Company shall notify Merchant of said cancellation. Company shall not be responsible for Vouchers redeemed after Company has provided notice to Merchant that such Voucher has been cancelled, and Merchant shall not be entitled to a Product Fee in respect thereof.
e. Promptly after execution of this Agreement, the parties shall collaborate and mutually agree in writing on a project plan setting forth all tasks, actions, undertakings, deliverables, work and items required for the Services to “go live”. Such project plan shall not be changed or modified without the prior written consent of the parties. Each party agrees to perform its respective work, tasks, undertakings, actions, and services in accordance with the project plan. The project plan may include technology integration or data connectivity between the parties to facilitate the transactions contemplated by this Agreement, including digital or electronic transmission of Voucher benefits between the parties (in lieu of physical Vouchers), confirmations of Voucher sold, and confirmation of Vouchers presented and redeemed. Neither party shall materially and adversely modify its technology or data integration and connectivity settings from those which each party has agreed to be implemented under this Agreement so as to impair the Services.
f. Merchant shall deliver to Company current digital weblinks to terms and conditions, descriptions, and FAQs (including codes of conduct or admission rules) applicable for any Product and holder of a Product (“Product Terms and Conditions”), which Product Terms and Conditions Merchant shall honor and comply with on each Voucher presented and redeemed. Merchant shall not change any element of a Product in a manner inconsistent with the Product Terms and Conditions. Merchant shall not impose terms and conditions on any customer who presents and redeems a Voucher for a Product which may be different than terms and conditions applicable to any of Product purchased directly from Merchant, and presented to and redeemed by, Merchant. If Merchant either (a) changes any element of a Product or (b) cancels a Product or no longer makes a Product available (e.g., a sold-out date) in each case after a customer has purchased a Voucher but before such customer has started to receive the benefits of the Product, Merchant will offer such customer an alternative product of the same or higher quality as the Product originally purchased and represented by such Voucher and/or otherwise accommodate such customer with adequate redress to the customer’s reasonable satisfaction. . If Company determines in its discretion that adequate redress or alternative product is not provided to the customers’ reasonable satisfaction, then Merchant shall not be owed (and Company shall not obligated to pay or reimburse) Merchant the Product Fee attributable to the Voucher which may be subject of such concern (or if such Product Fee had already been paid to Merchant, then the same shall be refunded to Company or Company may set off such amount, together with any out of pocket fees and charges incurred by Company, as a credit towards future payment obligations owed to Merchant).
g. Merchant shall be solely liable and responsible for all activities and elements of its business, including the production, design, creation, development, furnishing, fabrication, equipping, supervision, management, execution, know how, maintenance, operations, staffing, content, conduct and affairs of the attraction, exhibit, events, presentation, display, show, offerings, entertainment, production, or work comprising its business, and all costs and expenses arising therefrom (“Merchant Business”). Merchant shall conduct its Merchant Business in a first class/first rate manner, securely and safely with due care afforded to guests, customers and invitees of similar first-class/first rate providers in the industry and in accordance with all applicable laws. Merchant will provide suitable and adequate customer service to all customers who present and redeem Vouchers with Merchant, and upon redemption, Merchant shall thereafter be responsible for all customer service and relationship with such customer. If such customer notifies Merchant of a customer service complaint, Merchant shall promptly notify Company in writing of such complaint, and Merchant shall adequately respond to and provide adequate redress on such complaint in the same manner as Merchant delivers customer service to its other customers who directly purchase the Product from Merchant. Merchant and Company shall cooperate in good faith on formulating an adequate resolution to such complaint. If Company determines in its discretion to provide compensation or a make good to such customer as a form of redress to such complaint, then Merchant shall not be owed (and Company shall not obligated to pay or reimburse) Merchant the Product Fee attributable to the Voucher which may be subject of such complaint (or if such Product Fee had already been paid to Merchant, then the same shall be refunded to Company or Company may set off such amount, together with any out of pocket fees and charges incurred by Company, as a credit towards future payment obligations owed to Merchant.
h. Merchant represents and warrants that the Product Fee is the lowest net price/discounted price for such respective Product that Merchant has offered in exchange for a third party to deliver services similar to the Services herein. If it is discovered that the foregoing representation and warranty has been breached, in addition to other remedies at law or equity, Company may immediately cease selling such Voucher representing such Product.
2. MERCHANT MATERIAL LICENSE. Merchant hereby grants to Company and its designees the license to copy, use, distribute, broadcast, transmit, and/or exploit the trademarks, marks, service marks, trade names, names, logos and such other intellectual property, materials, videos, content, text and images of Merchant (collectively, “Merchant Material”) in connection with the Services (including the advertising, marketing, promotions, and offer for sale of the Voucher) in the form previously approved in writing by Merchant (email being sufficient). Merchant represents and warrants that Merchant has the requisite rights and authorizations in and to the Merchant Materials to grant Company the rights hereunder, all Merchant Material is and will continue to be accurate, true and accurate and shall not be false or misleading, and none of the Merchant Material infringes, misappropriates, violates, trespasses, contravenes or breaches any third party’s copyright, trademark, trade secret, service mark, patent or intellectual property right, proprietary right and the use thereof by Company herein will not constitute unauthorized or misappropriated use. Company may issue a press release or publicly announce the transactions contemplated by this Agreement, with the prior consent of Merchant.
3. TERM. The term of this Agreement shall commence on the Effective Date and end on the Expiry Date (the “Initial Term”). Notwithstanding the foregoing, this Agreement shall automatically renew for additional month to month terms (each, a “Renewal Term”) unless either Party provides written notice to the other Party no less than thirty (30) days prior to the expiration of the Initial Term (or the Renewal Term) of such Party’s intent to terminate the Agreement upon its expiration. The Initial Term together with any Renewal Term(s) shall collectively be referred to as the “Term” and shall be subject to earlier termination in accordance with the terms hereunder. Each Party may terminate this Agreement upon a breach by the other Party that has not been cured for fifteen (15) days after written notice thereof. In addition, Company may terminate this Agreement for any reason with at least thirty (30) days prior notice to Merchant. In the event that a Party hereto: (i) becomes insolvent, or institutes or has instituted against it a petition for bankruptcy or is adjudicated bankrupt; or (ii) executes a bill of sale, deed of trust, or a general assignment for the benefit of creditors; or (iii) is dissolved or transfers a substantial portion of its assets to a third party; or (iv) has a receiver appointed for the benefit of its creditors, or has a receiver appointed on account of insolvency (in the case of (i), (ii), (iii) or (vi) such party shall be referred to as the “Insolvent Party”); then the Insolvent Party shall immediately notify the other Party of such event and such other Party shall be entitled to terminate this Agreement for cause immediately upon written notice to the Insolvent Party. Notwithstanding anything to the contrary in the foregoing, to the extent any Vouchers for Products are to be redeemable beyond the Term of this Agreement, then Merchant shall honor such Vouchers in the same manner as set forth in this Agreement (and this Agreement shall be extended for a duration of time until the latest use date of such Vouchers for Product(s) has expired), but in no event shall Company have the right to sell Vouchers for additional Products beyond the Term, without the prior written consent of Merchant. Company may immediately suspend or terminate its Services and this Agreement upon becoming aware of any fraudulent or illegal activity concerning the Voucher, Product, Merchant or its business, or other activity, event, incident, act, behavior, or occurrence that does or may harm or impair the interests of Company or any of its affiliates, including any activity, event, incident, act, behavior, or occurrence that does or may, impair, injure or damage the business, brand, goodwill, property, reputation or standing of Company or its affiliates (or any of their officers, customers, vendors, personnel, representatives or principals) or that does or may bring any of the foregoing into disrepute, contempt, scandal, or ridicule, it being agreed that such exercise and determination may be made by Company in its sole discretion.
4. COMPENSATION. Company shall pay Merchant the applicable Product Fee for each Voucher presented for redemption to and redeemed by Merchant in accordance with the terms hereunder. Provided, however, Company may set off and retain a Company Service Fee from the net Product Fee paid to Merchant hereunder, which Company Service Fee shall be deemed earned upon set off therefor in consideration for Company’s processing and administration for such Voucher. Company shall be solely entitled to all revenues, income and sales attributed to the sale of the Voucher (whether as part of a Company Bundle or otherwise). Within thirty (30) days after expiry of each week (i.e., Sunday), Company shall deliver to Merchant the Product Fees to which Merchant is entitled for the elapsed week (i.e., 7-day period), together with a written statement setting forth the total amount of Vouchers presented for redemption to and redeemed by Merchant for the elapsed week. Merchant shall in good faith cooperate with Company and provide such other information as reasonably requested by Company. Neither party shall be responsible for the costs or expenses incurred by the other party in connection with this Agreement. Except for the Product Fee, Merchant is entitled to no other fee, compensation or charge in connection with the Services. All Product Fees will be paid to Merchant via ACH to a previously designated account. In no event shall Merchant be entitled to any revenues, sales or profit of Company. No dispute may be raised, and no claim, action or proceedings may be brought, against Company in respect of any payment-related matter (including but not limited to Product Fee) after (a) the expiry of one (1) year from the date on which the payment at issue is due (or alleged to be due) by Company, or (b) where more than one payment is at issue, the expiry of one (1) year from the date on which the first of such payments at issue is due (or alleged to be due) by Company.
5. INDEPENDENT CONTRACTOR. Company shall be an independent contractor with respect to Merchant and not an employee, partner or in joint venture with Company. Neither party nor anyone acting on its behalf shall be deemed an agent, employee, joint employee or servant of the other party, provided, however, to the extent required by law to effectuate the intent of this Agreement, Merchant is deemed to appoint Company in limited capacity as agent for purposes of effectuating the transactions herein for the Services, including acting as collections agent for sums paid by a customer to Company for a Voucher, provided, however any payment sums not otherwise delivered to Merchant as the Product Fee for a Voucher so presented and redeemed shall be considered retained amounts property of Company, it being agreed that Merchant shall only be entitled to the Product Fee and Company shall only be responsible to pay Merchant the Product Fee to the extent Company actually collects payment from the underlying customer (without subsequent chargeback or payment reversal by such customer). Neither party nor anyone acting on its behalf shall have any right to act on behalf of or bind the other party for any purpose.
6. FORCE MAJEURE. Neither party shall be deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations results from any cause beyond the non-performing party’s reasonable control and without such party’s fault or negligence, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, acts of terrorism, riots, insurrections, fires, explosions, earthquakes, floods, loss of power, strikes or lockouts.
7. INDEMNIFICATION. Merchant agrees to indemnify and defend, the other Company, its affiliates, and their personnel, agents, representatives, directors, owners, managers, officers, vendors, and customers and hold them harmless from and against any and all claims, actions, disputes, liabilities, losses, damages and expenses arising out of (i) any claim that any property or intellectual property of indemnifying party infringes, misappropriates, violates, trespasses, contravenes or breaches any third party’s copyright, trademark, trade secret, service mark, patent or intellectual property right, proprietary right or the use thereof constitutes unauthorized or misappropriated use, (ii) any gross negligence, willful misconduct, personal injury or property damage caused by the indemnifying party or its personnel (including, any personal injury or property damage occurring at or attributed to activities at the Venue or Merchant’s business), (iii) any violations of law by Merchant or its personnel, and (iv) the Merchant Business, including the delivery, performance or other activities of the Product. Merchant shall obtain and maintain business interruption, commercial general liability and such other insurance types that are customary for its business in coverage amounts sufficient in the normal course of its business.
8. CONFIDENTIAL INFORMATION. Each party acknowledges and agrees that during the term of this Agreement it may be furnished with or otherwise have access to Confidential Information of the other party. Confidential Information shall remain property of the Disclosing Party. The party that has received Confidential Information (the “Receiving Party”), in fulfilling its obligations under this Section, shall exercise the same degree of care and protection with respect to the Confidential Information of the party that has disclosed Confidential Information to the Receiving Party (the “Disclosing Party”) that it exercises with respect to its own Confidential Information, but in no event shall the Receiving Party exercise less than a reasonable standard of care. The Receiving Party shall only use Confidential Information as necessary to fulfill its obligations under this Agreement or in exercise of its rights expressly granted hereunder. Receiving Party shall not disclose Disclosing Party’s Confidential Information; provided that Receiving Party may disclose the Disclosing Party’s Confidential Information to its personnel solely for purpose of its obligations hereunder who have a need to know and who are bound by confidentiality obligations no less restrictive than imposed hereunder and Disclosing Party shall remain responsible for all acts and omissions of such personnel with respect to Confidential Information. Upon the termination or expiration of this Agreement, Receiving Party shall destroy or return, at the election of the Disclosing Party, all Confidential Information in the possession or control of the Receiving Party. The following information shall not be considered Confidential Information subject to this Section: (i) information that is publicly available or later becomes available other than through a breach of Receiving Party’s confidentiality obligations in this Agreement; (ii) information that is known to the Receiving Party or its employees, agents or representatives prior to such disclosure without an obligation of confidentiality, (iii) information which is independently developed by the Receiving Party or its employees, agents or representatives; (iv) information that is subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality. If the Receiving Party is required by law to disclose any portion of the Disclosing Party’s Confidential Information, Receiving Party shall, to the extent legally permitted, give prompt notice of such disclosure to Disclosing Party so as to permit Disclosing Party the right to seek a protective or similar order to prevent such disclosure, and, absent the entry of such an order, Receiving Party shall disclose only such Confidential Information as is necessary to be disclosed in response to such subpoena, court order or other similar document. Confidential Information” means all confidential and proprietary information of a party, including, without limitation, business plans, strategies, products, software, source code, object code, clients, vendors, financials, data models, discoveries, inventions, developments, know-how, improvements, works of authorship, concepts, or expressions thereof, whether or not subject to patents, copyright, trademark, trade secret protection or other intellectual property right protection, including, in the case of Company, any customer data. Company may use, collect, handle, disclose de-identified information, including de-identified information sourced, derived or created from information received, created, handled, and stored hereunder, for any lawful purpose, and Company shall have no obligation to Merchant with respect to deidentified information and such de-identified information shall not constitute property of Merchant.
9. NON-INTERFERENCE. Merchant shall not, directly or indirectly, on its own or through another person, solicit, contact or communicate with (or attempt to undertake any of such activities with) any customer who presents and redeems a Voucher with Merchant for purposes of marketing, advertising, selling or offering any products, offers or services of Merchant (other than as part of the Services of Company), and shall not otherwise interfere with, impair, or cause the termination or reduction of such customer’s relationship or engagement with Company (or attempt to undertake any of such activities).
10. EQUITABLE REMEDIES; CONSTRUCTION. In the event of a breach or threatened breach by a party, nonbreaching party shall be entitled to seek appropriate equitable relief against breaching party (including its employees and agents) from such breach or threatened breach, including but not limited to a temporary restraining order. Nothing contained herein shall be construed to prohibit nonbreaching party from pursuing any other remedies available to it for such breach or threatened breach, including recovery of damages from breaching party. The section headings in this Agreement are provided for convenience only and have no substantive effect on the construction of this Agreement. Captions, titles, and headings to articles and sections of this Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of this Agreement. The terms “this Agreement,” “herein,” “hereof,” “hereunder,” and similar expressions refer to this Agreement and not to any particular article, section or other portion hereof. Unless otherwise specified, “days” means calendar days. Any use of the term “including” in this Agreement shall be construed as if followed by the phrase “without limitation” or “but not limited to.” The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. All currency references in this Agreement shall be United States dollars.
11. ASSIGNMENT. Merchant may not assign, delegate or transfer its rights and responsibilities under this Agreement to another party.
12. AMENDMENT, WAIVER. This Agreement may only be amended, modified, superseded, canceled, renewed, and extended by a written instrument executed by Company. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by any party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement. Company reserves the right to amend, modify, and change the terms and conditions of this Agreement at any time in Company’s discretion. Company will notify users of any such amendments, modifications and changes solely by posting the new terms and conditions on this webpage to which these Terms and Conditions are displayed. The most current version of the Agreement posted will supersede all previous versions. Merchant’s continued use of the Services after the posting of any amended terms and conditions shall constitute Merchant’s agreement to be bound by any such changes. Merchant’s use of the Services prior to the time these terms and conditions were posted will be governed according to the terms and conditions that applied at the time of Merchant’s use.
13. NO STRICT CONSTRUCTION; ENTIRE AGREEMENT. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, superseding all previous agreements pertaining to such subject matter. All prior agreements, representations, statements, negotiations, understandings, and undertakings pertaining to the matters herein are superseded hereby.
14. GOVERNING LAW; EXHIBITS. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada. Merchant and Company consent to the exclusive jurisdiction and venue of the state and federal courts located in the State of Nevada. Exhibits and schedules referred to in this Agreement and attached hereto, are integral parts of this Agreement and are incorporated herein by this reference.
15. VALIDITY AND ENFORCEABILITY; HEADINGS. If any provision of this Agreement, or part thereof, shall be declared invalid, illegal or unenforceable, such provision or part thereof shall be severed and all remaining provisions shall continue in full force and effect. Headings contained in this Agreement are inserted for convenience only and are not intended to have any substantive significance in interpreting this Agreement.
16. NOTICES. All notices or other communications hereunder shall be in writing and shall be (a) delivered personally, or (b) delivered by a reputable overnight courier, or (c) solely to Company, by email, to the following: To Company: 3215 South Rancho Drive, Las Vegas NV 89102, Attn: Legal Department; and to Merchant: At the address and email below his signature.
17. EXECUTION; BENEFICIARIES. The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either party hereto (or by its successor), whether pursuant to this Agreement, to any other agreement, or to law, shall not preclude or waive its right to exercise any or all other rights and remedies. The Parties acknowledge that this Agreement is not exclusive and that either Party may engage in similar transactions with others. This Agreement may be executed by facsimile, digital/esign signature, or emailed PDF and in any number of counterparts, and each of such counterparts shall be deemed an original. By making any other manual or electronic signature now or later which either incorporates or references these terms, Merchant agrees and acknowledges that such action constitutes Merchant’s signature which applies to and evidences agreement to these terms. Merchant may request to sign these terms manually without a fee.
18. EFFECT OF AGREEMENT. This Agreement shall be deemed effective as of the date first written above.
19. AS-IS; LIMITATIONS. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. ALL SERVICES ARE PROVIDED ON AN AS-IS BASIS WITHOUT FURTHER REPRESENTATION OR WARRANTY, AND COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE. THE MAXIMUM LIABILITY OF COMPANY FOR ALL MATTERS ARISING UNDER THIS AGREEMENT OR ITS SERVICES SHALL NOT EXCEED AN AMOUNT EQUAL TO THE PRODUCT FEES PAID TO MERCHANT HEREUNDER FOR THE 12 MONTH PERIOD PRIOR TO DATE OF OCCURRENCE OF THE CLAIM GIVING RISE TO SUCH LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
20. SURVIVAL. Except as otherwise set forth herein, in the event of termination of this Agreement for any reason, the provisions of Sections 1 (last sentence), 3, 4 (last 2 sentences), 5 to 20 shall survive. Termination of this Agreement is without prejudice to any other right or remedy of the parties. Termination of this Agreement for any reason does not release either party from any liability which, at the time of termination, has already accrued to the other party, or which may accrue in respect of any act or omission before termination or from any obligation which is expressly stated to survive the termination. Upon termination of this Agreement for any reason, each party shall return property owned by the other party in its possession or control. Merchant shall maintain such books and records (“Records”) as are necessary to substantiate that all Product Fees for payment hereunder were valid and proper during the Term and for a period of three (3) years after termination or expiration of this Agreement. All Records shall be maintained in accordance with generally accepted accounting principles consistently applied. Company and/or its representative shall have the right at any time during normal business hours, upon twenty-four (24) hours’ notice, to examine said Records.