Verifone | Convenience Retail & Petro Terms

These Terms and Conditions for the Verifone Petroleum and Convenience Retail Site Solution (including any exhibits and as amended or restated from time to time, these “Terms”) constitute a legal agreement between VeriFone, Inc. (“Verifone”) and the customer entity identified below (“you”, “your”, or any variation thereof) and describes the terms and conditions that apply to your subscription to and use of the Verifone Petroleum and Convenience Retail Site Solution (the “Solution”).

YOU MUST ACCEPT THESE TERMS BEFORE USING THE SOLUTION. YOUR USE OF ANY COMPONENT OF THE SOLUTION WILL BE DEEMED YOUR ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, DO NOT ACCEPT THESE TERMS OR USE THE SOLUTION.

IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF SOMEONE ELSE, INCLUDING A BUSINESS ENTITY, YOU CONFIRM THAT (I) YOU HAVE THE AUTHORITY TO LEGALLY BIND THAT PERSON OR ENTITY TO THESE TERMS, AND (II) YOU ACKNOWLEDGE THAT BOTH YOU AND THE OTHER PERSON OR ENTITY WILL BE BOUND BY THESE TERMS.

Verifone reserves the right to modify these Terms at any time in its sole discretion. All changes to these Terms will be effective and binding on you on the earlier of (1) your acceptance of the updated terms or (2) your continued use of any component of the Solution after Verifone has requested your acknowledgment of the updated terms. If you do not agree to any modification to these Terms, you must immediately cease using the Solution.

1. PROVISIONING OF THE SOLUTION.

(a) General. Pursuant to and in accordance with these Terms, you are authorized to access and use the Solution for your internal business purposes only. The Solution includes the following components: (i) Verifone Commander Site Controller Software (the “Commander Software”), (ii) Verifone Petroleum and Convenience Retail point-of-sale software (“POS Software”), (iii) one or more of the Verifone EVPAY software, the Verifone ViperPay software, and the Verifone Attendant Payment Terminal depending on the Verifone payment terminals you use (the “Payment Application”), (iv) optional Verifone self-checkout software (“SCO Software”), (v) the base Verifone C-Site Management Service (“C-Site”), and (vi) corresponding Verifone support and maintenance services described in Exhibit 1 (collectively, the “Solution”). Verifone may provide written documentation regarding the features, functionalities, and design specifications of the various components of the Solution, and you must use each component in accordance with any such documentation. Except for the SCO Software, which will be included in the Solution only if you affirmatively elect to include it and pay the corresponding fees and you may choose to deactivate without deactivating the other components of the Solution, the components of the Solution are made available to you as a single Solution and cannot be activated or deactivated individually. The Solution is provided on a per-location basis and may be used only at or with those locations identified to Verifone together with such information about each location that Verifone may reasonably request (each, a “Location”). You may use the Solution only in the jurisdictions specified by Verifone in writing. If Verifone has not specified any jurisdiction in writing, you may use the Solution only in the United States. Verifone reserves the right to remove any user with or without notice should Verifone determine, in its sole discretion, that the Solution has been compromised or in any way used inappropriately. You shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver, or otherwise transfer any component of the Solution (including access to your C-Site account), to any third party.

(b) Supported Verifone Hardware. Verifone currently supports the Solution for use with specific Verifone hardware models (such devices, as designated by Verifone from time to time, “Supported Hardware”). You may contact Verifone directly to place orders for Supported Hardware or may acquire such Supported Hardware from a Verifone-authorized distributor. Verifone may alter the list of Supported Hardware in its sole discretion and will provide an updated list upon receipt of your written request.

(c) Standard Offering; Modification; Discontinuation. Each component of the Solution will be Verifone’s standard, off-the-shelf product or service and no special or customized versions will be provided. Notwithstanding anything to the contrary herein, Verifone may modify any component at any time in its discretion, and Verifone may discontinue components in its discretion, provided that Verifone will endeavor to provide you with as much notice of such discontinuation as is commercially practicable under the circumstances. If you purchase products or services from Verifone that are not covered by these Terms (including Supported Hardware), such purchase shall be governed by a separate written agreement between you and Verifone or a Verifone-authorized distributor or, in the absence of such a separate agreement, Verifone’s Standard Terms and Conditions, which are available at www.verifone.com/legal and are subject to change from time to time.

(d) Ownership. You acknowledge that all components of the Solution, any corresponding documentation, and any intellectual property rights relating to or residing therein (including any patents, copyrights, trade secrets, trademarks, trade names, or mask work rights), including the proprietary electronics, software, and technical information of Verifone therein (the “Proprietary Materials”), are proprietary products of Verifone and that ownership of such shall remain with and inure to Verifone. Except for the license rights expressly granted in Section 4, you shall have no right, title, or interest therein. Verifone reserves all rights in the Proprietary Materials and any other Verifone intellectual property not expressly granted herein. If you provide suggestions, comments, or other feedback (“Feedback”) to Verifone with respect to the Solution, (i) all Feedback shall be deemed to be given voluntarily; (ii) Verifone shall be free to use, disclose, reproduce, distribute, and otherwise commercialize all Feedback provided to it without obligation or restriction of any kind on account of intellectual property rights or otherwise; and (iii) you waive all rights to be compensated or seek compensation for such Feedback.

(e) Account Information; Set-Up. For Verifone to provide the Solution, you must provide Verifone with such information and assistance as Verifone may reasonably request. You must inform Verifone promptly of any changes to such information to keep such information true, accurate, current, and complete at all times. Verifone will only provide the Solution after your account has been approved. Verifone will not have any liability for any breach or delay or failure to perform any obligation that results from erroneous or incomplete information provided to Verifone, your failure to secure your account information, or your failure to otherwise cooperate with Verifone reasonably. You are responsible for all activities that occur using your account and you will ensure that all activity conducted using your account complies with these Terms and any other applicable agreements you have in place with Verifone. You may be required to complete online training modules to be able to access and use the Solution. You may (at your expense) contract a Verifone Authorized Service Contractor (“VASC”) to assist you with any or all of the initial set-up process for the Solution and you will be responsible for any actions or omissions such VASC takes on your behalf, including downloading any software, accessing any services, and agreeing to any Verifone terms and conditions.

(f) Compliance with Law; Misuse of Solution. You must use the Solution in compliance with all applicable laws, rules, and regulations, as well as any rules imposed by any card network or payment scheme. You may not conduct, attempt to conduct, or solicit a third-party to conduct penetration testing or other vulnerability assessments of any component of the Solution other than to the extent expressly required to complete a PCI-DSS assessment. You may not access or use, or attempt to access or use, any component of the Solution in a manner intended to or with the effect of negatively impacting the performance of any component of the Solution. Verifone may, directly or indirectly, suspend, terminate, or otherwise deny access to or use of all or any component of the Solution without incurring any resulting obligation or liability if: (i) Verifone receives a judicial or other governmental demand, order, subpoena, or law enforcement request that expressly or by reasonable implication requires Verifone to do so; or (ii) Verifone believes, in its sole discretion, that: (A) you or any Authorized User (as defined below) has failed to comply with any provision of these Terms, or accessed or used any component of the Solution in any manner beyond the scope of the rights granted or for a purpose not authorized under these Terms or in any manner that does not comply with any instruction or requirement of the specifications provided by Verifone; (B) you or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (C) these Terms are terminated. This Section does not limit any of Verifone’s other rights or remedies, whether at law, in equity, or under these Terms or any other agreement between the parties. “Authorized Users” means your employees, contractors, and agents who you authorize to access and use any component of the Solution under the rights granted to you hereunder.

(g) Merchant IT Environment. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment (included Supported Hardware) needed to access and use the Solution (collectively, the “Merchant IT Environment”), and for paying all third-party access charges (e.g., telecommunications) incurred in connection therewith. You shall comply with any recommendations that Verifone establishes regarding bandwidth and security requirements for communications and equipment. Without limiting the generality of the foregoing, you must use a Verifone-certified connectivity method to connect with Verifone for the Solution (which may include using a Verifone-certified managed network service provider). Notwithstanding such Verifone approval or certification, Verifone shall have no liability to you, any site owner or operator, or any other person for the connectivity method used by, or any services provided by your service provider to, any such person to use the Solution. Verifone reserves the right to terminate a connectivity method or service provider in its discretion. In such an event, Verifone will advise you of other approved access methods or providers. Furthermore, you are responsible for the security and integrity of the Merchant IT Environment and maintaining the security of all data, including cardholder data and other personal data of your customers while processed, stored, or transmitted via the Merchant IT Environment or while otherwise in your possession or control. Verifone has no obligation to ensure that the Solution operates in conjunction with the Merchant IT Environment and you shall be responsible for all costs you incur in connection with any modifications you elect to make to your own equipment, software, services, or other products or systems.

(h) Third-Party Products. Certain third parties provide software applications, platforms, and other products and services that interoperate with Verifone products and services, including the Commander Software or C-Site (“Third-Party Products”). Certain Third-Party Products are developed using Verifone proprietary specifications, implementation guides, and other Verifone intellectual property (collectively, “Verifone IP”) that Verifone licenses to developers subject to terms and conditions agreed between Verifone and such developers. Such licenses are required and any development, marketing, selling, or other provision of a Third-Party Product by any developer or other person that does not obtain and maintain a valid license to such Verifone IP from Verifone would be in violation of Verifone’s intellectual property rights. Verifone reserves the right to enforce its intellectual property rights in its sole discretion, including by revoking any license in accordance with the terms of the corresponding license agreement and seeking the removal of the infringing Third-Party Product from the market, which may impact your ability to continue using such Third-Party Products. Your use of any such Third-Party Product is at your own risk and subject to Verifone’s rights in respect of the Verifone IP.

2. FEES; SERVICE TERM.

(a) Fees. Verifone’s obligation to provide the Solution and each of its components is subject to the payment of the corresponding fees agreed between you and Verifone in a separate purchase order or other ordering document or between Verifone and the franchisor, wholesaler, marketer, or other entity with which your site is affiliated. In the absence of such agreement, Verifone will be entitled to charge you its then-current list price for the Solution and invoice you the corresponding fees in advance in accordance with its standard practices. Fees in respect of a Location are payable upon enablement of the Solution for such Location and will continue accruing until these Terms are terminated and you stop using every component of the Solution at or with such Location. Verifone reserves the right to suspend or terminate your access to the Solution or any component thereof at or with every Location at any time that any fees that are then due and payable have not been paid by the end of any agreed payment period. Fees are earned when due and are non-refundable and not subject to set off.

(b) Service Term. Unless otherwise agreed between Verifone and the franchisor, wholesaler, marketer, or other entity with which your site is affiliated, the Solution is provided on a per-Location, rolling twelve-month basis (each such twelve-month period or other period agreed between Verifone and the franchisor, wholesaler, marketer, or other entity with which your site is affiliated, a Service Term”). If you continue to use any component of the Solution at any Location after the end of any Service Term, the fees for an additional Service Term for such Location will immediately become due and payable. If you elect to close a designated Location or cease using the Solution at a Location, you must notify Verifone of such event in writing. If you fail to so notify Verifone, fees for the Solution will continue to accrue in respect of such closed or deactivated Location regardless of whether you continue using the Solution at or with such Location. Deactivating the Solution for any Location prior to the end of a Service Term that has already commenced will not entitle you or the person or entity responsible for paying Solution fees on your behalf to a refund of any portion of the fees paid or payable for such Service Term.

3. TERMINATION.

(a) Termination. Either party may elect to terminate these Terms (i) at the end of the then-current Service Term for the initial Location onboarded to the Solution upon written notice to the other party at least thirty days prior to the end of such Service Term, or (ii) upon thirty days’ written notice if the other party breaches these Terms and such breach is not cured by the end of such thirty-day notice period. In addition, Verifone may elect to terminate these Terms immediately upon written notice if (x) your business terminates or you are the subject of a dissolution, reorganization, insolvency, or bankruptcy action, (y) required to comply with applicable legal or regulatory requirements, or (z) Verifone ceases to offer the Solution or any of its material components to its customers generally; provided that in the case of clause (z) only, Verifone will use commercially reasonable efforts to continue to perform its obligations hereunder during a wind-down period determined by Verifone in its sole discretion and in any event not to exceed twelve months. These Terms will continue to apply during any such wind-down period.

(b) Effect of Termination. Upon termination of these Terms, (i) you must immediately cease using every component of the Solution at all Locations; (ii) all rights, licenses, consents, and authorizations granted by Verifone hereunder will immediately terminate, and (iii) all Service Terms will terminate and Verifone shall have no further obligation to provide the Solution or any related support for any Location.

(c) Survival. Each provision of these Terms that should survive the expiration or termination of these Terms to give proper effect to its intent will survive the expiration or termination of these Terms.

4. TERMS APPLICABLE TO SOFTWARE.

(a) License to Solution Software. Verifone grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to install and use the Commander Software, the POS Software, the Payment Application, the SCO Software (if elected and paid separately), any Software Updates (as defined below) provided to you by Verifone, and any terminal operating systems, firmware, encryption applications, application programming interfaces, libraries, payment applications, or other software or software components pre-installed on any Supported Hardware you may acquire from Verifone or a Verifone-authorized distributor (collectively, the “Solution Software”) (all in object code form only) together with any applicable documentation, on the Supported Hardware on which it was originally installed by Verifone, a Verifone-authorized distributor, or a VASC for your internal business use only. All other uses are prohibited. You shall not, and shall not permit any third party to, reverse engineer, decompile, disassemble, translate, modify, alter, or create any derivative works based on the Solution Software or determine or attempt to determine any source code, algorithms, methods, or techniques embodied in the Solution Software. You shall not remove or alter any Verifone trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to any component of the Solution. The licenses granted hereunder are device-specific (tied to the device serial number) and cannot be transferred from one Supported Hardware device to another except in connection with a replacement of a Supported Hardware device as a result of a warranty claim in accordance with the warranty terms applicable to the relevant Supported Hardware device.

(b) Third-Party Content. Verifone shall not be responsible or liable for any third-party content enabled by you using the Solution Software. You shall use any such content in accordance with any terms applicable to such third-party content. The Solution Software may contain or be provided with code, software, interfaces, firmware, or other components which are subject to the terms and conditions of “open source” software licenses, including terms and conditions relating to your use, reproduction, and distribution thereof (the foregoing, “Open-Source Components”). To the extent required by such licenses or in the event such licenses conflict with any terms contained herein, the terms of such licenses will apply in lieu of the terms contained herein with respect to such Open-Source Component. Portions of the Solution Software may utilize or include third-party software and other copyrighted material. Acknowledgments, licensing terms, and disclaimers for such material are contained in the documentation included with the Solution Software or may otherwise accompany such material, and your use of such Solution Software and materials are governed by those respective terms. In the event of conflict between the terms herein and any applicable terms relating to such third-party software or copyrighted materials, such applicable terms shall control solely with respect to the third-party software or copyrighted materials.

(c) Maintenance and Support. Verifone will provide the maintenance and support services described in Exhibit 1 in respect of the Solution Software.

5. TERMS APPLICABLE TO C-SITE.

(a) Right to Access C-Site Services. Verifone hereby grants you and your Authorized Users a right to access and use the base C-Site features for each Location for your internal business use only. Verifone will provide you with appropriate access credentials within a reasonable time following the acceptance of these Terms. You must connect the Commander Software and corresponding Supported Hardware to the C-Site to be able to perform merchandise transactions. The features included in the base C-Site service are described in the C-Site documentation that Verifone will provide and update from time to time. The right granted hereunder is in respect of the base C-Site service only and does not include all features that Verifone may make available through the C-Site now or in the future, which may be subject to additional fees, terms, and conditions.

(b) Restrictions. You shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver, or otherwise transfer your C-Site account to any third party. You shall not, and shall not permit any other person to: (i) bypass or breach any security device or protection used by the C-Site or related documentation or access or use the C-Site or related documentation other than by an Authorized User through the use of its own then-valid access credentials; (ii) input, upload, transmit, or otherwise provide to or through the C-Site or Verifone’s IT Environment (as defined below), any information or materials that are unlawful or injurious, or contain, transmit, or activate any malicious code; (iii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the C-Site, Verifone’s IT Environment, or Verifone’s provision of the Solution or any other product or service to any third party, in whole or in part; or (iv) otherwise access or use the Solution or corresponding documentation beyond the scope of the authorization granted hereunder.

(c) Verifone’s IT Environment. The C-Site is provided by Verifone as a cloud service involving the storage, processing, or transmittal of data through the information technology network and related hardware and software environment directly controlled and maintained by Verifone to store, process, or transmit data electronically in the course of Verifone’s provisioning of access to the C-Site (“Verifone’s IT Environment”). Verifone’s IT Environment does not include (i) devices located in your physical or information technology environment and any software running on such devices, (ii) processor, internet, network, or POS systems (including non-Verifone circuits, VPNs, or data transmission architecture, wherever located), or (iii) other systems outside of Verifone’s control. Verifone conducts routine maintenance on the servers on which the C-Site is hosted. Maintenance is generally scheduled during time periods when overall end user online activity is more limited. Verifone reserves the right to shut down the C-Site with no notice should emergency maintenance become necessary.

(d) Security Measures. Verifone will maintain no less than commercially reasonable administrative, physical, and technical safeguards for Verifone’s IT Environment to prevent and detect unauthorized access, destruction, use, modification, or disclosure of any customer data provided by you in connection with the Solution. These safeguards will include: (i) adequate physical security of all premises; (ii) reasonable precautions with respect to the employment of and access given to Verifone personnel; (iii) an appropriate network security program with reasonable access and data integrity controls, testing and auditing of all controls, and appropriate corrective action and incident response plans; and (iv) industry standard practices for virus and malware protection. However, no security system is impenetrable and Verifone cannot guarantee that unauthorized parties will never be able to defeat its security measures or misuse any data in its possession. You provide data to Verifone with the understanding that any security measures Verifone provides may not be appropriate or adequate for your business.

(e) Data. You are responsible for your access to and use of the C-Site and any data that is submitted or transmitted to, through, or in connection with your C-Site account (collectively, “Data”). You assume all risks associated with the Data, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information that makes you or any other person personally identifiable. You shall provide notice and obtain any required consent from each of your Authorized Users and consumers that any personally identifiable information that you collect could be transferred to and stored in the C-Site. You should not add any Authorized user or consumers records to the C-Site until any required consent has been obtained. You agree not to store any Cardholder Data (“CHD”) or Sensitive Authentication Data (“SAD”) (each as defined in the PCI DSS rules) in the C-Site. Your Data must not: (i) be false, inaccurate, misleading, obscene, indecent, pornographic, defamatory, libelous, threatening, harassing, abusive, inflammatory, discriminatory, or fraudulent; (ii) relate to or involve the sale of illegal, counterfeit, or stolen goods; (iii) infringe upon or misappropriate any third party’s copyright, patent, trademark, trade secret, or other intellectual property rights; (iv) violate any of these Terms or any applicable laws; or (v) expose Verifone to, or appears to create, any kind of liability for Verifone. Verifone reserves the right to remove, disable, and reformat any Data at any time without notice. By accepting these Terms and using the C-Site, you consent to Verifone collecting and using the Data, technical and usage data, and other information in connection with your use of the Solution and selling and sharing all such data and information with Verifone’s third-party service providers and partners, including for data analytics and optimization, to facilitate the provision of the Solution, to provide updates, support, and other services related to the Solution, to improve Verifone’s products and services, and for other lawful purposes. You agree that Verifone may disclose any Data if required in connection with a judicial or other governmental demand, order, subpoena, or law enforcement request and consent to Verifone’s cross-border data transfers in connection with these Terms. This Section shall survive any expiration or termination of these Terms.

(f) No Data Backup. The C-Site does not replace the need for you to maintain regular data backups or redundant data archives. Verifone has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of your data.

6. REPRESENTATIONS, WARRANTIES, AND COVENANTS.

You represent, warrant, and covenant as follows:

(a) Due Organization. If you are or are representing a legal entity, you are an entity duly organized, validly existing, and in good standing under the laws of your jurisdiction of organization and are properly registered to do business in all jurisdictions in which you carry on business. If you are an individual or sole proprietor, you are of the legal age of majority in the jurisdiction in which you reside and you have the right and authority to agree to these Terms.

(b) Approvals. You have all licenses, regulatory approvals, permits, and powers legally required to conduct your business in each jurisdiction in which you conduct business.

(c) Authority. You have the authority to accept and perform the obligations required by these Terms, including all power, authority, and legal right to accept, deliver, and to carry out the transactions and obligations contemplated hereby.

(d) Validity. These Terms have been duly accepted by you and constitute a valid and binding obligation, enforceable in accordance with their terms. You are not required to obtain the approval or consent of any person or government department or agency to enter into these Terms.

(e) No Conflicts. Neither (i) the acceptance of these Terms, nor (ii) the consummation of these Terms, will (A) conflict with your certificate of incorporation or by-laws or any other organizational document, (B) breach any obligations under any contract to which you are a party, or (C) violate applicable law. (f) Accuracy; Changes. You are responsible for ensuring that all the information disclosed to Verifone in connection with these Terms is true, accurate, and complete. You will promptly inform Verifone of any action or event of which you become aware that has the effect of making inaccurate any of the representations or warranties set forth in these Terms.

7. WARRANTIES. THE SOLUTION IS PROVIDED “AS IS.” VERIFONE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. VERIFONE DOES NOT WARRANT THAT THE SOLUTION OR ANY COMPONENT THEREOF WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOLUTION OR ANY COMPONENT THEREOF WILL BE UNINTERRUPTED OR ENTIRELY ERROR FREE. YOU ACKNOWLEDGE THAT UNDER NO CIRCUMSTANCES DOES VERIFONE REPRESENT OR WARRANT THAT ANY ERRORS IN ANY SOFTWARE CAN BE REMEDIED. IF VERIFONE PROVIDES A ROADMAP OR PROJECTED IMPLEMENTATIONS FOR THE SOLUTION, SUCH INFORMATION IS NOT BINDING ON VERIFONE AND YOU SHOULD NOT RELY ON SUCH INFORMATION. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM VERIFONE OR FROM ANY OTHER PARTY ABOUT THE SOLUTION SHALL CREATE ANY WARRANTY. NOTHING IN THESE TERMS OPERATES TO EXCLUDE, RESTRICT, OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY, OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER LAW WHERE TO DO SO WOULD CONTRAVENE THAT LAW OR CAUSE ANY PROVISION OF THESE TERMS TO BE VOID.

8. LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) VERIFONE SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR (I) ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (II) LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS, REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR TRANSACTIONS, CHARGE-BACKS, EQUIPMENT PURCHASED OR ACQUIRED BY YOU OR YOUR SUBCONTRACTORS OR AGENTS TO EFFECTUATE THESE TERMS, OR COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, REGARDLESS OF WHETHER SUCH LOSSES ARE DIRECT LOSSES OR INDIRECT LOSSES, IN EACH CASE (I) AND (II) RELATING IN ANY MANNER TO THESE TERMS OR THE SOLUTION OR ANY MAINTENANCE AND SUPPORT SERVICES PROVIDED HEREUNDER AND WHETHER ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGE; (B) IN ANY CASE, VERIFONE’S ENTIRE LIABILITY RELATING IN ANY MANNER TO THESE TERMS AND THE SOLUTION AND ANY MAINTENANCE AND SUPPORT SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED TO YOUR DIRECT AND DOCUMENTED DAMAGES, AND WHICH LIABILITY WILL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY PAID BY YOU FOR THE SOLUTION DURING THE SIX MONTHS PRIOR TO THE CLAIM ARISING; AND (C) VERIFONE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THESE TERMS OR THE SOLUTION. THE LIMITATIONS ON VERIFONE’S LIABILITY SET FORTH IN CLAUSES “(B)” AND “(C)” OF THIS SECTION SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY VERIFONE’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE DISCLAIMERS CONTAINED IN SECTION 7 AND THE LIMITATIONS SET FORTH IN THIS SECTION ARE A FUNDAMENTAL PART OF THE BASIS OF VERIFONE’S BARGAIN HEREUNDER, AND VERIFONE WOULD NOT PROVIDE THE SOLUTION ABSENT SUCH LIMITATIONS.

9. COMPLIANCE. You are responsible for complying with all applicable laws, rules, and regulations in connection with these Terms, the operation of your business, and your use of the Solution, including export control laws, the Fair and Accurate Credit Transactions Act (FACTA) (including responsibility for any information printed on receipts), the Americans with Disabilities Act, and all applicable anti-corruption and anti-bribery laws, rules, and regulations. You hereby agree to indemnify Verifone and its affiliates, directors, officers and employees for all costs, expenses, damages, claims, charges, penalties, fines, and other losses that arise in connection with any breach by you or your subsidiaries, owners, officers, directors, employees, partners, subcontractors, agents, or representatives, of this Section.

10. CONFIDENTIALITY.

(a) Confidential Information. “Confidential Information” means any and all confidential or proprietary information disclosed by Verifone to you that is related to these Terms, the Solution, or other products, services or information offered or made available by Verifone from time to time, whether such information is in oral, written, graphic or electronic form. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) Verifone expressly agrees in writing is free of any nondisclosure obligations; (ii) your previously knew at the time of disclosure to you (as evidenced by documentation in your possession) free of any nondisclosure obligations; (iii) you independently develop (as evidenced by documentation in your possession); (iv) you lawfully receive from a third party that has the right to so furnish such information free of any nondisclosure obligations; or (v) is or becomes generally available to the public without any breach of these Terms or any other confidentiality obligation applicable to the discloser or unauthorized disclosure by you. These Terms (including any pricing terms contained herein or related hereto) shall be deemed to be the Confidential Information of Verifone.

(b) Nondisclosure and Nonuse. You shall (i) disclose such Confidential Information to only your directors, officers, employees, subcontractors, and agents (A) whose duties justify their need to know such information and (B) who have been clearly informed of their obligation to maintain the confidential, proprietary, or trade secret status of such Confidential Information; and (ii) use such Confidential Information only for the purposes set forth in these Terms. You shall treat all Confidential Information as strictly confidential and shall use the same degree of care to prevent disclosure of such information as you use with respect to your own confidential and proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances. Notwithstanding the foregoing, you may disclose Confidential Information to the extent required by applicable federal, state, or local law, regulation, court order, or other legal process, provided that you provide Verifone prior written notice of such required disclosure and, to the extent reasonably possible, an opportunity to contest such required disclosure.

(c) Confidentiality Period. Your obligations under this Section shall continue (i) with respect to Confidential Information that meets the definition of a trade secret under applicable law, until such time as such Confidential Information is no longer a trade secret (other than as a result of a breach of these Terms), and (ii) with respect to all other Confidential Information, until five years after termination of these Terms.

(d) Termination of these Terms. Upon termination of these Terms, you shall (i) promptly return all Confidential Information received from Verifone, including all copies thereof and materials derived therefrom, or (ii) at Verifone’s election, destroy the Confidential Information and, if requested by Verifone, certify in writing that you have complied with the provisions of this clause (ii).

11. INDEMNITY.

To the extent permitted by applicable law, you agree to indemnify, defend and hold harmless Verifone, its affiliates, and each of their directors, officers, employees, independent contractors, and agents (each a “Verifone Indemnified Party”), from any and all claims, losses, liabilities, damages, expenses, and costs (including without limitation attorneys’ and experts’ fees and costs) (collectively, “Losses”) incurred by a Verifone Indemnified Party as a result of (a) any claim arising out of or in connection with: (i) your access to and use of the Solution or any of its components, (ii) any violation or breach by you of these Terms or any failure by you to comply with applicable laws, (iii) any dispute or litigation caused by your acts or omissions, (iv) your data, or (v) the use of your C-Site account, whether by you or a third party; or (b) any claim from any third party for whom you use the Solution or any of its components. Verifone reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Verifone, including rights to settle, and you agree to cooperate with the defense and settlement of these claims. Verifone will use reasonable efforts to notify you of any claim, action or proceeding brought by a third party that is subject to the foregoing indemnification upon Verifone becoming aware of it.

12. GOVERNING LAW; DISPUTE RESOLUTION

(a) Governing Law. These Terms and the rights of the parties hereunder shall be governed by and construed and interpreted in accordance with the laws of the State of New York and the parties hereby consent to the personal and exclusive jurisdiction and venue of the state and federal courts in New York City. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, WHETHER IT RESULTS IN PROCEEDINGS IN ANY COURT IN ANY JURISDICTION OR IN ARBITRATION, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE OR ARBITRATOR WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. To the extent applicable, in the event of any lawsuit between the parties arising out of or related to these Terms, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury. The rights and obligations of the parties under these Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

(b) Arbitration. Notwithstanding anything herein to the contrary, except with respect to enforcing claims for injunctive or equitable relief, any dispute, claim, or controversy arising out of or relating in any way to these Terms or the interpretation, application, enforcement, breach, termination, or validity thereof (including any claim of inducement of these Terms by fraud and including determination of the scope or applicability of this agreement to arbitrate) or its subject matter (collectively, “Disputes”) shall be determined by binding arbitration before one arbitrator. YOU MAY NOT PURSUE ANY CLAIM AGAINST VERIFONE AS A CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION. CLAIMS REGARDING ANY DISPUTE AND REMEDIES SOUGHT AS PART OF A CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE ACTION MUST BE BROUGHT ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS. The arbitration shall be administered by JAMS conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of these Terms, including Rules 16.1 and 16.2 of those Rules. The arbitration shall be held in New York, New York, USA and it shall be conducted in the English language. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator shall have authority to award compensatory damages only and is not empowered to award any punitive, exemplary, or multiple damages, and the parties waive any right to recover any such damages. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding anything to the contrary in these Terms, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). Each party shall be responsible for its respective fees, including attorney’s and expert’s fees, in pursuing or defending a claim hereunder. Judgment on any award in arbitration may be entered in any court having jurisdiction. Notwithstanding the above, each party shall have recourse to any court of competent jurisdiction to enforce claims for injunctive and other equitable relief. Nothing herein shall preclude either party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

13. MISCELLANEOUS.

(a) Entire Agreement; Severability. These Terms constitute the entire agreement between Verifone and you and supersede all prior or contemporaneous agreement, communications, and proposals, whether electronic, oral, or written, relating to the subject matter hereof, including any other agreement with Verifone you may have executed or otherwise agreed in the past related to a license to any Solution Software or access to the other components of the Solution. In the event of any conflict between these Terms and those set forth on any ordering document submitted by you or on your behalf to Verifone, these Terms shall control. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the Parties agree that the court should endeavor to give the maximum effect to the Parties’ intentions as reflected in the provision, and that the other provisions of these Terms shall remain in full force and effect.

(b) Assignment. You may not assign these Terms, in whole or in part, by operation of law, contract, or otherwise, without Verifone’s prior written consent. Subject to the preceding sentence, these Terms shall bind you and your permitted successors and assigns. Verifone may assign these Terms or any of its rights or obligations hereunder in its sole discretion.

(c) Independent Contractor. In its performance of these Terms, Verifone shall act in the capacity of an independent contractor and not as your employee or agent. Neither party nor its employees, consultants, contractors, or agents are agents, employees, partners, or joint ventures of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation. Neither party will represent to the contrary, expressly, implicitly, by appearance or otherwise.

(d) Publicity. Verifone may identify you as a customer of Verifone on its website and other marketing materials and, in connection with these activities, Verifone may use your name and logo in accordance with any brand usage guidelines provided in writing to Verifone. Verifone may issue press releases, either jointly or independently, relating to the matters contemplated by these Terms, provided that you have approved the form and substance of such press release in advance (such approval not to be unreasonably withheld, conditioned, or delayed). Except as permitted in this Section or with respect to disclosures and regulatory filings required under applicable law, neither party shall make any public announcements relating to the matters contemplated by these Terms without the prior written consent of the other party.

(e) Force Majeure. Verifone shall not be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, non-performance of its vendors or suppliers, acts of God, pandemics, epidemics, shortages of fuel, energy, labor or materials, transportation delays, electrical or communication infrastructure failures or disturbances, fires, floods, labor disturbances, riots, or wars.

(f) No Waiver. Failure by either party to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or any other provision.

(g) Construction. Each party acknowledges and agrees that any interpretation of these Terms may not be construed against a party by virtue of that party having drafted the provisions. The headings and captions contained herein are for convenience of reference only and shall not affect the interpretation or construction of these Terms.

(h) Notices. Notices made by Verifone to you under these Terms may be (i) posted on the applicable Verifone portal or may be provided upon access to the Solution, (ii) via email at the address provided to Verifone in connection with your registration, or (iii) by overnight courier or certified mail to the address provided by you in connection with your registration. It is your responsibility to keep your contact information (including your email address and notice address) current. Verifone will not be responsible to you if you fail to receive any notices due to inaccurate contact information or your failure to update such information with Verifone. You must send notices to Verifone at VeriFone, Inc., c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808, or such other address as Verifone may provide you from time to time for such purposes. All mailed notices shall be deemed effective upon the earliest to occur of: (a) actual delivery; or (b) three days after mailing via registered United States mail, addressed and postage prepaid, return receipt requested.

EXHIBIT 1 – MAINTENANCE AND SUPPORT

1. Help Desk Services. Verifone will provide you access to Verifone’s Help Desk Services for production issues relating to the Solution. You may access Verifone’s Help Desk Services by various methods enabled by Verifone from time to time, which may include toll-free telephone numbers, email, chat, or web-based forms. Verifone’s Help Desk Services are available 24/7/365 for the United States.

2. Customer Obligations. With respect to any support requests, you must: (a) notify Verifone of your designated contact person(s) (the “Designated Contact”) and, to the maximum extent practicable, your communication with Verifone regarding support services will be through your Designated Contact; (b) promptly report any errors and variances in any component of the Solution and provide Verifone a listing of output and any other data that Verifone may reasonably request to reproduce operating conditions similar to those present when the error occurred; (c) not provide any data to Verifone that violates PCI rules; (d) comply with any minimum requirements specified by Verifone for the Solution; (e) use only Supported Versions of the Solution Software and ensure that any Software Updates were installed in accordance with the instructions and order of installation indicated by Verifone; and (f) screen out all problems that have causes other than the Solution.

3. Exclusions. Verifone shall have no obligation to provide support in respect of any component of the Solution that is the result of: (a) your negligence, abuse, or misapplication; (b) use of the support services other than as specified herein; (c) causes beyond the control of Verifone; (d) any device communication software installed on any hardware that is not supported by Verifone; (e) any SIM cards not supported by Verifone; (f) use of any component of the Solution in a manner for which it was not designed; (g) any alterations of or additions to any component of the Solution made by parties other than Verifone or its authorized representatives; (h) changes to the operating system or environment which may adversely affect the Solution Software or any component thereof; (i) use of the Solution with products or services not approved by Verifone; (j) use of any component of the Solution by any unauthorized person; or (k) or any other cause which, in Verifone’s reasonable determination, is not inherent in the Solution.

4. Software Updates; Access to Software Updates. Verifone will provide you with the updated versions of the applicable Solution Software if, when, and as such software updates are made generally available by Verifone, including as necessary to correct material errors in the Solution Software that are reported to and reproducible by Verifone (collectively, “Software Updates”). If Verifone provides a Software Update and has notified you that such Software Update is a mandatory or critical update, you agree to install (or cause to be installed) such updates as promptly as commercially practicable and in any event no later than 180 days after receipt of the Software Update. Software Updates shall be made available either through Verifone’s portal or directly from Verifone through remote software downloading. You must have a broadband connection (using a Verifone approved product) and must use a Verifone-approved connectivity method to connect with Verifone for remote software downloads (which may include using a Verifone managed network service provider). Notwithstanding such Verifone approval, Verifone shall have no liability to you for the connectivity method used by, or any services provided to you to obtain software downloads. You must look solely to your service provider and not Verifone for any rights or remedies you may have with respect thereto. If remote access is not available to you, Verifone may, in its sole discretion, make available Software Updates on physical media (as determined by Verifone), for an additional charge. In such event, you may need to engage a VASC for support during the Software Update loading procedure. You are responsible for installing Software Updates and for ensuring that devices using the Solution Software use a Supported Version of the Solution Software. Additional communications, release notes, version information, and version support policies for the Solution Software will be made available on the applicable Verifone portal.

5. Supported Versions. Verifone will provide support only for Supported Versions of the Solution Software and shall not be responsible or liable if you or any other party fails to update the Solution Software to a Supported Version. “Supported Version” means (a) in respect of the Commander Software, the current and immediately preceding major release of the Commander Software and (b) in respect of any other Solution Software, the current and immediately preceding version of such Solution Software.

6. Support for Discontinued Devices. Verifone may discontinue the Supported Hardware or Solution Software in accordance with its standard policies and practices. Following the discontinuation of a particular Supported Hardware device model, Verifone will no longer provide maintenance and support for the Solution Software for use on or with the discontinued Supported Hardware device. Your continued use of the Solution Software on or with such Supported Hardware devices is at your own risk and Verifone disclaims, and you release Verifone from, any liability resulting therefrom.