Developer Integration and Marketing Agreement

This Developer Integration and Marketing Agreement (the ‘Agreement’) is made by and between Square (as defined below) and the undersigned individual or company (‘Developer’) as of the date accepted by Developer (‘Effective Date’).

1. Definitions

In this Agreement:

(a) ‘Affiliate(s)’ means and includes any entity or association controlled by, controlling or under common control with a party existing as of, or formed after, the Effective Date. For purposes of this Agreement, the term ‘control’ shall mean the ownership, directly or indirectly, of more than fifty per cent (50%) of (i) the voting shares or similar voting instruments or the combined voting power in such entity or association or (ii) the total value of all stock, capital interest or profits interest in such entity or association.

(b) ‘Confidential Information’ means information that one party (or an Affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient (as evidenced by competent records) or that was lawfully given to the recipient by a third party.

(c) ‘Developer Customers’ means businesses who utilise Developer Services in the Territory (defined below).

(d) ‘Developer Services’ means Developer’s services to be integrated with Square Services (defined below).

(e) ‘General Terms of Service’ means the Square General Terms of Service for a particular Territory as set forth in Exhibit A.

(f) ‘Indirect Tax’ and ‘Indirect Taxes’ mean any applicable sales, use, value-added, goods and services, consumption, telecommunications, documentary or other similar taxes, duties, levies, fees or excises, imposed by any federal, state, foreign, provincial or local governmental taxing authority with respect to the transactions and payments under this Agreement.

(g) ‘Key Success Metrics’ means approval of (i) Developer Services by Square’s engineering team and (ii) Developer’s integration of Developer Services with Square Services in accordance with quality assurance (‘QA’) requirements as set forth by Square’s engineering team.

(h) ‘Merchant(s)’ means a business, whether a corporation, sole proprietorship or other entity who utilises Square Services in the Territory to record or process payments for its goods or services, and not any customer utilising Square Services in his or her capacity as an end consumer of such goods or services.

(i) ‘Merchant Data’ means data contained in a Merchant’s Square account.

(j) ‘Square’ means the entity specified in Exhibit A as applicable to the Territory, determined by reference to the Merchant’s location.

(k) ‘Square Developer Tools’ means Square software development kit files, tools, programs and utilities, as well as any plug-in or other application programming interfaces (‘APIs’), sample code (including runtime and libraries) and related documentation made available at https://connect.squareup.com, or such other site as Square may notify Developer of from time to time.

(l) ‘Square Services’ means Square’s product offerings enabling users to record transactions, accept payments via credit or debit cards, or any other generally available applicable services Square may make available from time to time.

(m) ‘Taxing Authority’ means the relevant government taxing authority, any other government or governmental or regulatory body thereof, any political subdivision thereof, or any agency, instrumentality or authority thereof, or any court or arbitral body, exercising executive, legislative, judicial, regulatory or administrative functions, in each case, whether federal, state, local or foreign, responsible for the administration, collection or imposition of any Tax.

(n) ‘Territory’ means the applicable territory specified in Exhibit A, as may be updated from time to time by written notice by Square.

2. General

This Agreement forms a legally binding and enforceable contract between Developer and Square. Developer is contracting independently with each applicable Square entity as identified in Exhibit A. Notwithstanding anything to the contrary, each Square entity listed in Exhibit A shall be severally and not jointly responsible to Developer for each of their respective obligations under its respective Agreement with Developer, and any claims arising out of or related to the performance of their respective obligations thereunder. Developer further acknowledges and agrees that no Square entity or Affiliate of Square that is not party to the Agreement for a particular Territory shall be liable in any manner with respect to any claims arising out of or related to the performance of that Agreement; and Developer hereby irrevocably and unconditionally releases each of those entities from all such claims, liability, losses, damages, costs and expenses with respect to performance of this Agreement. Where Developer desires to enter into multiple Agreements for multiple Territories, Developer acknowledges and agrees that Developer’s integration in a particular Territory is governed exclusively by this Agreement and the Developer Terms of Service and General Terms of Service listed in Exhibit A for that Territory. Notwithstanding the foregoing, to the extent the General Terms of Service applicable in a Territory require a party’s representation that they are physically located in that Territory, such representation is waived for a Developer that is party to this Agreement except with respect to the Territory in which the Developer is physically located. For the avoidance of doubt, the waiver of representations relating to a Developer’s physical location in any General Terms of Service does not provide for any additional rights, licenses, or other permissions as relating to the use of Square Services, including but not limited to payment services, for which physical location in a Territory is a requirement to use Square to process payments.

3. Product Integration

(a) Developer-Square Interconnectivity. Beginning upon the Effective Date, the parties will work together to enable features of Square Services to operate from Developer Services and support the transfer of data between Square Services and Developer Services. The parties therefore agree:

1. Square will make available to Developer the Square Developer Tools to enable Developer to build an integration between Developer Services and Square Services utilising Square’s APIs to receive authorisation to access a Merchant’s Square account (via the OAuth protocol), and Square will also make available Square API endpoints to enable Developer to access authorised Merchant data and to submit requested data back to Merchant via the Square Connect API, as well as provide APIs to allow in-person or online payments.
2. Developer will build an integration between Developer Services and Square Services using (i) the Square Developer Tools to enable authorised Merchant data to be imported and utilised within Developer Services at Merchant’s direction; and (ii) Subscriptions API, for the purpose of collecting fees for Developer Services from all Merchants which have been referred to the Developer Services through the Square App Marketplace.
3. Access and use of the Square Developer Tools, including, but not limited to, SDKs and APIs, is subject to the terms of service for the applicable Square entity as listed in Exhibit A (and in the event of a conflict between those terms and the terms of this Agreement, the terms of this Agreement will prevail).
4. Additionally, in the event Developer utilises Square’s Order Ahead functionality through an integration with Square’s Orders API, Developer agrees to also integrate Developer Services with Square’s Customers API and push the following buyer data to Merchant through the integration: name, email address, phone number, mailing address, order history, as well as other relevant fields Square may reasonably require to facilitate Square’s performance hereunder and Merchant’s communication with said buyers, including promotional offers and rewards (‘Buyer Data’).

(b) Support. Each party will be responsible to its respective customers for the support of its products and services. Developer will be responsible for customer support related to the integration between Developer Services and Square Services using Square Developer Tools.

4. Merchant Data

Developer acknowledges and agrees that Merchant Data is the
proprietary information of Merchants. Developer may only access and use data from a Merchant’s account with such Merchant’s explicit prior authorisation and consent. Developer represents and warrants that it has made all necessary disclosures and obtained all necessary consents so that Buyer Data may be used as described in this Agreement. In the event Developer builds integrations with Square Services through the Square Developer Tools, Developer’s access to Merchant Data maintained by Square is subject to the terms of the Developer Terms of Service, including Square’s privacy notice referenced therein.

5. Marketing and Promotion

(a) Developer Activities. During the Term, Developer will promote Square Services integrated with Developer Services, including, at a minimum: (i) featuring Square as one of the preferred payment partners to Developer Customers; (ii) implementing the Square-provided referral tracking link on all links to Square; and (iii) sending promotional communications through available marketing channels, including, but not limited to email.

(b) Square Activities. Subject to Developer’s compliance with this Agreement and provided Developer meets Key Success Metrics, during the Term of this Agreement, Square may (at its own discretion):

1. feature Developer Services on Square’s App Marketplace, or such other location as determined by Square;
2. feature Developer in Square marketing materials for communication to Merchants;
3. provide Developer with access to Merchant community in which Developer may communicate with Merchants and promote Developer’s integration of Developer Services with Square Services;
4. provide Developer with access to repository of Square-approved marketing content and brand assets; and
5. feature Developer Services integrated with Square Services in Square blogs and Square’s ‘Learning Hub’.

(c) Brand Features. Square grants to Developer a limited, non-exclusive and non-sublicensable licence to display the Square name, trademark, logo or other marketing assets solely as provided to Developer by Square (‘Brand Features’) in order to promote Developer’s integration with Square, provided that Developer complies with the branding guidelines provided by Square from time to time. Square may revoke the permission to use Brand Features by giving Developer notice and a reasonable period of time to cease use. Square may use, and Developer grants Square a limited licence to use, Developer’s name and logo in the course of performing the activities set forth herein.

6. Revenue Sharing; Taxes and Payments

(a) Revenue Share. During the Term, Developer will pay Square (or Square will retain, if fees for Developer products or services listed on the Square App Marketplace are paid through Subscriptions API) 20% of the revenue, excluding any taxes, it receives for Developer products or services paid by Merchants who become Developer Customers due to referral by Square hereunder (‘Revenue Share’).

(b) Referral Fees to Developer. During the Term and commencing upon notice to Developer by Square of the integration’s availability on the Square App Marketplace, Square will pay to Developer a 10% referral fee based upon aggregate Payment Processing Adjusted Revenue (defined below) realised by Square for the first twelve (12) months of card processing volume of Developer Customers who become new Merchants due to referral by Developer using their unique referral link. Developer represents and warrants that any activities performed to generate referrals to Square hereunder are performed by Developer solely in the country associated with the business address provided by the Developer in its Square account.

For the purposes of this Section, ‘Payment Processing Adjusted Revenue’ means the fees received and retained by Square from the applicable Merchants to process payments for Merchant’s transactions (excluding payments processed through Subscriptions API), less: (1) any fees payable by Square to third parties in order to process and settle such transactions, such as fees related to assessments, network, interchange, processing and chargeback fees; (2) refunds, chargebacks or credits provided to such Merchants; and (3) any applicable taxes, duties or other governmental fees.

(c) Pre-existing fee arrangements. Notwithstanding any agreements to the contrary, the fees listed in Sections 6(a) and 6(b) do not supersede any custom and/or negotiated rates between Developer and Square that existed prior to the execution of this agreement.

(d) Payments Made Net of Indirect Taxes. Revenue Share and referral fee amounts payable hereunder are exclusive of any Indirect Taxes. If the party receiving payment (‘Payee’) is legally obligated to collect applicable Indirect Taxes, such Indirect Taxes shall be calculated by Payee based on the taxable fees payable for the relevant period (by location, if applicable), and separately stated on a valid, accurate and complete invoice for that period which meets applicable Taxing Authority invoicing requirements. The party making payment (‘Payor‘) shall pay the correct and undisputed invoice unless Payor provides Payee with a tax exemption certificate or any other additional documentation that satisfies the requirements to establish that the otherwise applicable Indirect Taxes are not required to be charged. Payor will not be responsible for payment of any Indirect Taxes Payee fails to specify on the applicable original invoice or any other taxes, assessments, duties, permits, tariffs, fees or other charges of any kind.

(e) Withholding Taxes. If applicable, Payor shall be entitled to deduct from any payments to Payee the amount of any withholding taxes with respect to amounts payable, or any taxes in each case required to be withheld by Payor to the extent that Payor pays to the appropriate Taxing Authority on behalf of Payee such taxes. Any amounts so withheld shall be treated as having been paid for all purposes of this Agreement. Upon presentation to Payor by Payee of appropriate and timely tax forms and documentation claiming the benefits of an applicable income tax treaty to amounts payable, Payor agrees to reduce or eliminate withholding in accordance with such treaty claim. Payee is solely responsible for ensuring that the information contained in Payee’s tax forms and documentation provided to Payor is current, complete and accurate. If Payor eliminates or reduces withholding tax in accordance with a treaty claim by Payee and a relevant Taxing Authority determines a higher withholding tax amount should have been paid than that which was withheld by Payor, Payee agrees to indemnify Payor for the full amount of such underwithholding as well as any related penalties and interest. The Parties agree to take all reasonable and lawful steps available to them to reduce or eliminate taxes that would otherwise be payable in connection with the transactions contemplated by this Agreement.

(f) Request for Tax Information. Applicable laws, regulations and/or tax authorities may require the Payor to collect certain information from the Payee, including certain forms and documentation (e.g. IRS Form W–8BEN-E or W-9) to (i) indicate the tax residency of the Payee, (ii) claim the benefits of an income tax treaty or an exemption from withholding taxes, and (iii) report certain information to Taxing Authorities and revenue authorities (e.g. U.S. Form 1099 or Form 1042-S) (‘Tax Information’). Prior to payment, the Payee agrees to promptly deliver to the Payor the appropriate Tax Information and recertify such Tax Information from time to time, as may be required. The parties acknowledge and agree that Payor will report to the applicable tax or revenue authorities the required Tax Information (including the total amount of payments paid to the Payee during the relevant reporting period). The Payee is solely responsible for ensuring that the Tax Information provided to the Payor is timely, complete and accurate.

(g) Reports and Payments. Except for Subscription API fees referenced in subsection (a), which are to be withheld by Square and/or Affiliate of Square in the course of settling payment processing fees owed to Square, Payments to be made pursuant to subsection (a) and (b) above will be made in the calendar month following the collection in which the applicable fees were collected from the Merchants who become Developer Customers due to referral by Square hereunder. All payments hereunder will be made in the local currency applicable to the Territory accompanying such payment. Developer will supply Square with monthly reports of the aggregate fees received which form the basis of payments hereunder. Developer will, upon Square’s and/or Affiliate of Square’s request, identify for Square the country location of new Merchants that are referred to Square by Developer. Square may designate an Affiliate of Square to collect Revenue Share payments from and/or make Referral Fees to the Developer.

7. Warranties; Disclaimers

(a) Warranties. Each party warrants that it has full power and authority to enter into this Agreement, and entering into or performing under this Agreement will not violate any agreement it has with a third party.

(b) Disclaimers. Except as expressly provided for in this Agreement and to the maximum extent permitted by applicable law, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, AND DISCLAIMS, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.

8. Intellectual Property

(a) Developer Services. Developer retains all rights, title and interest in and to the Developer Services and Square does not acquire any ownership of any rights therein.

(b) Square Services; Square Developer Tools; Feedback. Square retains all rights, title and interest in and to the Square Services, Square Developer Tools and feedback provided to Developer by Square. Notwithstanding the foregoing, should Square provide feedback to Developer regarding Developer’s Services, Square hereby grants Developer a perpetual, non-exclusive, royalty-free, worldwide right to reproduce, distribute and use the feedback within Developer Services. Square provides such feedback ‘as-is’ and makes no warranties or representations of any kind relating to such feedback.

9. Confidentiality

The recipient of any Confidential Information will not disclose that Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use Confidential Information only to exercise rights and fulfil obligations under this Agreement, while using reasonable care to keep the Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, if permitted by law.

10. Indemnity

(a) By Developer. Developer will indemnify, defend and hold harmless Square from and against all liabilities, damages and costs (including defence settlement costs) arising out of a third-party claim: (i) that Developer Services or any Developer trademarks licensed hereunder infringe or misappropriate any copyright, trade secret or trademark of that third party; or (ii) relating to Square’s permitted promotion of Developer Services.

(b) By Square. Square will indemnify, defend and hold harmless Developer from and against all liabilities, damages and costs (including settlement costs) arising out of a third-party claim that Square Services or any Square trademark licensed hereunder infringes or misappropriates any copyright, trade secret or trademark of that third party.

(c) General. The party seeking indemnification will promptly notify the other party of the claim and co-operate with the other party in defending the claim. The indemnifying party has full control and authority over the defence, except that any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed. The other party may join in the defence with its own counsel at its own expense. THE INDEMNITIES IN SUBSECTIONS (a) AND (b) ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

11. Limitation of Liability

(a) Limitation. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE SUM OF FEES PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE 12 MONTHS BEFORE THE CLAIM ARISES.

(b) Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations contained in this Agreement, or violations of a party’s intellectual property rights by the other party, or indemnification obligations contained in this Agreement.

12. Term and Termination

(a) Term. This Agreement will commence upon the Effective Date and continue for a period of two years (the ‘Initial Term’). Thereafter the Agreement will automatically renew for additional one-year periods (‘Renewal Term’) unless a party provides notice to the other of its intent not to renew no later than 90 days prior to the start of any Renewal Term. The Initial Term, together with any Renewal Term, may be referred to as ‘Term’.

(b) Termination for Breach. Either party may terminate this Agreement immediately upon written notice to the other party if the other party breaches any provision of this Agreement and: (a) the breach is incapable of remedy; or (b) the breaching party fails to cure such breach within 30 days of the date of written notice of such breach from the terminating party.

(c) Termination for Convenience. Either party may terminate this Agreement for any or no reason upon not less than 30 days’ prior written notice to the other party.

(d) Effect of Termination; Wind Down. Upon expiry or termination of this Agreement: (i) each party will, upon written request of the other party, return or destroy (and a duly appointed officer will certify to such destruction) all copies of any Confidential Information in its possession of which it is aware and to which it has access and is reasonably able to destroy or delete; (ii) each party will cease all use, promotion, reproduction and distribution of the other party’s trademarks as authorised under this Agreement; and (iii) Developer will cease use of and access to the Square API unless permitted by the terms of service for such API or as set forth in this subsection (d). Neither Party will be liable to the other for any damages resulting solely from termination of this Agreement as permitted under this Agreement. Further, upon expiry or termination of this Agreement other than pursuant to subsection (b) above, for a period of three (3) months following the effective date of such termination or expiry (the ‘Wind-Down Period’), the parties will work together in good faith to effect an orderly transition for the party’s mutual customers as follows: Square will continue to provide access to Developer for the needed Square APIs, Developer will continue to make Developer Services as integrated with Square available to Developer Customers, and payments pursuant to Section 6 above will continue to be made. Notwithstanding the foregoing, following termination of this Agreement and completion of the Wind-Down Period, Developer’s continued access to the Square APIs and Square Services is subject to Square’s Developer Terms of Service, General Terms of Service and related terms found for the applicable Square entity as listed in Exhibit A, or such other online location as made available by Square (collectively, the ‘ToS’).

13. Miscellaneous

(a) Neither party may assign or transfer its rights or obligations under this Agreement without the other party’s prior written consent, whether by operation of law or otherwise. Any attempt to transfer or assign this Agreement is void.

(b) All notices will be in writing and addressed to the attention of the other party’s Legal Department and primary point of contact. Notice will be deemed given (i) when verified by written receipt if sent by personal courier, overnight courier or mail; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.

(c) Failure to enforce any provision will not constitute a waiver. If any provision of this Agreement is found unenforceable, the balance of this Agreement will remain in full force and effect.

(d) The governing law applicable to this Agreement shall be determined based on the applicable Square entity as set forth in Exhibit A, without regard to conflict of laws principles that would require the application of the laws of another jurisdiction. For any dispute arising out of or relating to this Agreement, the parties consent to personal jurisdiction in, and the exclusive venue of, the venue specified for the applicable Square entity in Exhibit A.

(e) Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action or widespread disturbance of the Internet) that was beyond the party’s reasonable control.

(f) This Agreement does not create an agency, partnership or joint venture between the parties.

(g) The obligations in Sections 6 (for the duration specified in 12(a)), 7, 8, 9, 10, 11, 12(d), 13 and the ToS will survive any expiry or termination of this Agreement.

(h) This Agreement supersedes any prior agreements or understandings between the parties. Except for the ToS, which is required to be accepted in order to create a Square account, to access and to continue to access the Square Developer Tools, this Agreement constitutes the entire Agreement between the parties related to this subject matter, and any change to its terms must be in writing and signed by the parties.

(i) The parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

EXHIBIT A

APPLICABLE SQUARE ENTITY BY TERRITORY

¹ Canada. If the Territory is Canada, Square Technologies, Inc. and Square Canada, Inc. are both contracting parties for Square. Square Technologies, Inc. is the applicable Square entity for integrations, revenue sharing and referrals related to software-as-a-service, and hardware, and Square Canada, Inc. for integrations, revenue sharing and referrals related to payment processing. For purposes of Section 2 of the Agreement, if the Territory where Developer desires to integrate Developer Services with the Square Services and/or market the Square Services as set forth in the Agreement is Canada, the applicable Square entity (either Square Technologies, Inc. or Square Canada, Inc.) shall each be liable solely with respect to claims arising out of or related to their respective performance of their respective obligations under the Agreement; and Developer hereby irrevocably and unconditionally releases each of those entities from any such claims, liability, losses, damages, costs and expenses with respect to the other entity’s performance under this Agreement.

Japan. If the Territory is Japan, each Party to this Agreement represents and warrants that none of the representatives, directors, employees, etc. of themselves are, or will during the term of this Agreement be, affiliated with any anti-social forces. In the event that Square K.K. is affiliated with any anti-social forces, or Developer has a reason to suspect that any of Square K.K. and its affiliates are so affiliated in violation of the previous sentence, Developer shall have the right to terminate this Agreement with immediate effect, and Square K.K. must indemnify and hold harmless Developer and its Affiliates for all resulting damage caused to the Developer. Similarly, Developer (on behalf of itself and its Affiliates) represents and warrants that none of the representatives, directors, employees, etc. of themselves or their Affiliates are, or will during the term of this Agreement be, affiliated with any anti-social forces. In the event that Developer or its Affiliates are affiliated with any anti-social forces, or Square K.K. has a reason to suspect that any of them are so affiliated in violation of the previous sentence, Square K.K. shall have the right to terminate this Agreement with immediate effect, and Developer must indemnify and hold harmless Square K.K. for all resulting damage caused to Square K.K.

United Kingdom. If the Territory is the United Kingdom, Squareup Europe Limited and Squareup International Limited are both contracting parties for Square. Squareup Europe Limited is an FCA-regulated e-money institution that is party to this Agreement for the purposes of satisfying all regulatory requirements and is the applicable Square entity for integrations, revenue sharing and referrals related to payment processing. Squareup International Limited holds all intellectual property licences of Square and is the applicable Square entity for integrations, revenue sharing and referrals related to software-as-a-service, hardware, fraud and risk monitoring services. For purposes of Section 2 of the Agreement, if the Territory where Developer desires to integrate Developer Services with the Square Services and/or market the Square Services as set forth in the Agreement is the United Kingdom, the applicable Square entity (either Squareup Europe Limited or Squareup International Limited) shall each be liable solely with respect to claims arising out of or related to their respective performance of their respective obligations under the Agreement; and Developer hereby irrevocably and unconditionally releases each of those entities from any such claims, liability, losses, damages, costs and expenses with respect to the other entity’s performance under this Agreement.

Ireland, France and Spain. If the Territory is Ireland, France and Spain, Squareup International Limited is the contracting Square entity. In European Union countries, Squareup International Limited provides payment services as a Central Bank of Ireland-regulated e-money institution.

² Each Square entity to the Agreement shall be solely and independently responsible for its respective obligations to Developer under the Agreement with Developer, including payment of any applicable fees hereunder. Each Square entity shall be solely and independently liable for any claims arising out of or related to the performance of their respective obligations under its Agreement with Developer.

³ Or such other URL as may be communicated by the applicable Square entity from time to time.