These Standard Terms and Conditions for Verifone Services and Solutions (“Terms and Conditions”) constitute a legal agreement between VeriFone, Inc. (“Verifone”) and you, acting as an authorized representative of your employer, company, or such other legal entity on whose behalf you are acting (“Merchant”), with respect to Merchant’s access to and use of any Verifone service, solution, software, payment devices and peripherals, and other related products that may be provided by Verifone to Merchant as part of a Verifone service or solution (collectively, and as applicable, a “Verifone Solution”).
By accepting these Terms and Conditions:
Merchant agrees to be bound by these Terms and Conditions, including, to the extent applicable to the particular Verifone Solution being accessed and used by Merchant, the Exhibits attached hereto, which Exhibits shall form a part of these Terms and Conditions;
if Merchant is agreeing to be bound by these Terms and Conditions as an individual, Merchant represents and warrants that Merchant is of the legal age of majority in the jurisdiction in which Merchant resides and has the right and authority to agree to these Terms and Conditions;
if you are agreeing to be bound by these Terms and Conditions on behalf of your employer, company, or such other legal entity on whose behalf you are acting, (a) you represent and warrant that you have all requisite legal authority to bind such employer, company or other entity to these Terms and Conditions; and (b) “Merchant” as used herein shall refer to such employer, company or other entity; and
Merchant represents and warrants that Merchant is not barred or otherwise legally prohibited from accessing or using the Verifone Solutions.
Merchant acknowledges that Merchant has read, understood, and agrees to comply with all terms, conditions, and provisions contained in or referenced in these Terms and Conditions. If Merchant does not have the requisite authority to accept these Terms and Conditions, Merchant should not accept these Terms and Conditions, and should not access or otherwise use the Verifone Solution.
A. GENERAL TERMS.
(1) Purchase through Resellers. In the event that Merchant has purchased or subscribed to the Verifone Solution via a third party distributor authorized by Verifone (a “Reseller”), the Reseller may perform certain activities on Merchant’s behalf with respect to the Verifone Solution.
(2) Covered Territory. Merchant may use the Verifone Solution only in the countries, territories, or other regions identified above and for which it has acquired the right to so use the Verifone Solution (the “Covered Territory”).
(3) Terms applicable to Merchant’s use of Verifone Connect. In the event that Merchant has subscribed to a Verifone Solution that includes “Verifone Connect”, the terms of Exhibit A shall apply to Merchant’s use of such solution. For purposes hereof, “Verifone Connect” refers to a suite of software and services that Verifone may offer from time to time that enable the running of supported applications (each, an “App”, and collectively, the “Apps”) developed by Verifone and/or third parties on Merchant’s supported Verifone payment devices, whether such solution is branded as “Verifone Connect” or a different name. “Apps” do not include any payment applications or terminal security applications provided by Verifone for use with the underlying Verifone Solution.
(4) Supported Verifone Devices. Verifone supports particular Verifone Solutions on specific Verifone payment device models, which Verifone designates from time to time in its discretion, and Merchant may use the Verifone Solution only with supported payment device models. Verifone reserves the right to cease supporting all or a part of a Verifone Solution for any payment device model at any time. Once Verifone no longer supports a payment device model for use with a particular Verifone Solution, Verifone may no longer accept new orders for such payment devices from Merchant or Reseller, and Merchant may no longer activate such payment devices on the applicable Verifone Solution.
(5) Procurement of Verifone Payment Devices. If Merchant has subscribed to a Verifone Solution that includes the rental of Verifone payment devices (and related peripherals), the terms set forth in Exhibit B shall apply. Otherwise, Merchant must separately procure supported Verifone payment devices from Verifone or an authorized Verifone reseller for use with the Verifone Solution. Any purchase of Verifone payment devices directly from Verifone, together with any accompanying software, shall be governed by Verifone’s Standard Terms and Conditions for Verifone Hardware, which are available at https://www.verifone.com/legal, including the warranty terms set forth therein. In the event Merchant procures Verifone payment devices from a third party, the terms and conditions of such procurement shall be as agreed to between Merchant and such third party.
(6) Supported Payment Processors. With respect to the payment processing component(s) of a Verifone Solution, Verifone integrates and certifies such component(s) to various third-party processors and payment gateways; Merchant may use a Verifone Solution only with a supported processor and/or payment gateway, and is responsible for contracting with its desired third-party processor and/or payment gateway for such third-party’s applicable services. Merchant should contact Verifone with any questions regarding which third-party processors are supported by Verifone for a particular Verifone Solution.
(7) Supported Software. To the extent Verifone provides help desk services for software support as part of a Verifone Solution, Verifone shall provide such support only for the current released version of the software and for those versions released during the prior eighteen (18) months. If Merchant wishes to continue receiving software support from Verifone’s help desk for such software, Merchant shall be required to install (or have installed) a supported version of such software on its payment devices.
(8) PCI DSS Warranty for Payment Gateway. If Verifone is providing payment gateway services to Merchant as part of a Verifone Solution, Verifone warrants that its payment gateway has been determined to be compliant with the Payment Card Industry Data Security Standards (“PCI DSS”) by a PCI Qualified Security Assessor. Verifone shall seek revalidation of the payment gateway as required by the payment brands for so long as Verifone provides the applicable Verifone Solution to Merchant. In the event that PCI DSS requirements applicable to the payment gateway change, Verifone shall use commercially reasonable efforts to meet all new applicable PCI DSS requirements.
(9) Maintenance of Hosted Components of a Verifone Solution. Verifone conducts routine maintenance to those components of a Verifone Solution that are hosted by or on behalf of Verifone; such maintenance is generally scheduled during time periods when overall end user online activity is limited. Verifone reserves the right to suspend the availability of any such hosted component with no notice should emergency maintenance become necessary. Verifone further reserves the right to suspend access to or restrict Merchant from accessing the Verifone Solution should Verifone determine, in its sole discretion, that the Verifone Solution has been compromised or in any way used inappropriately. In extreme cases, where Merchant has compromised the security of a Verifone Solution or otherwise acted in a malicious or damaging manner, removal may occur immediately without prior notification.
(10) Fees. Merchant is responsible for paying the applicable fees for the Verifone Solution when due. Verifone reserves the right to change its fees from time to time to reflect Verifone’s then-current standard fees for the applicable Verifone Solution. If Merchant fails to pay the applicable fees when due (or if Reseller fails to pay Verifone for the Verifone Solution in accordance with Reseller’s separate agreement with Verifone (regardless of whether Merchant has paid such fees to Reseller)), Verifone shall be entitled to pursue collection of such fees from Merchant and reserves the right to withhold or terminate Merchant’s access to the Verifone Solution until such fees are paid in full. If applicable, in the event Verifone’s separate agreement with Reseller terminates, Verifone reserves the right to terminate Merchant’s access to the Verifone Solution.
(11) Taxes. Merchant is responsible for any Taxes, and Merchant shall pay Verifone the applicable fees for the Verifone Solution without any reduction for Taxes. Merchant must comply with any and all applicable tax laws, including the reporting and payment of any Taxes arising in connection with Merchant’s use of the Verifone Solution. The reporting and payment of any such applicable taxes are Merchant’s responsibility. If Verifone or Reseller is obligated to collect or pay Taxes, the Taxes will be charged to Merchant. “Taxes”, for purposes of this paragraph, means any duties, customs fees, sales, use, goods and services (GST), value added (VAT) or other taxes (other than income tax) associated with the Verifone Solution, including any related penalties or interest.
B. LICENSES; INTELLECTUAL PROPERTY.
(1) License to Verifone Solution. Merchant shall have a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right and license to access and use the Verifone Solution in the Covered Territory, solely for Merchant’s internal business purposes. Verifone may modify the Verifone Solution from time to time in its discretion.
(2) Restrictions. Merchant agrees that Merchant shall not (i) market, distribute, sell, assign, pledge, sublicense, lease, deliver, or otherwise transfer the Verifone Solution or any component thereof; (ii) reverse engineer, decompile, disassemble, reverse assemble, translate, modify, alter, or create derivative works based upon any source or object code or any software or other products, services, or processes accessible through any portion of the Verifone Solution; (iii) determine or attempt to determine any source code, algorithms, methods, or techniques embodied in the Verifone Solution; (iv) destroy, alter, add, or remove any intellectual property, confidentiality, or other legal markings or notices from the Verifone Solution; (v) engage in any activity that interferes with any user’s access to and proper operation of the Verifone Solution, or otherwise causes or may reasonably be expected to cause harm to Verifone, any Verifone Solution, or users thereof; (vi) attempt to, nor assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect, obfuscate, or otherwise restrict access to any Verifone Solution; (vii) attempt to gain unauthorized access to the Verifone Solution or computer systems or networks connected to the Verifone Solution, through password mining or any other means, or to interfere with, disrupt, disable, circumvent or alter any method of measuring, tracking, recording or billing of any Verifone Solution; (viii) transmit, display, store, distribute, or otherwise make available through or in connection with the Verifone Solution, content that violates any legal, intellectual property, confidentiality, or privacy rights of other parties, or contains or triggers any viruses, Trojan horses, worms, malware, time bombs, cancelbots, corrupted files, or any other similar software, program, or device that may be damaging to Verifone, the Verifone Solution, or other users; (ix) transmit, process, harvest, or otherwise collect or store any information (including personally identifiable information about other users of the Verifone Solution, including e-mail addresses) without the express consent of Verifone and such users; (x) disclose any benchmarking information or analyses regarding the functionality or performance of any Verifone Solution; or (xi) engage in any activities in connection with Merchant’s use of the Verifone Solution that seek or attempt to do harm (or actually do harm) to any individuals or entities, or are unlawful, fraudulent, infringing, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Verifone.
(3) Intellectual Property.
(a) Verifone Solution. Merchant agrees that the Verifone Solution, including, without limitation, all intellectual property and other proprietary rights, including patents, designs, trademarks, copyright, source code, algorithms, trade-secrets, text, graphics, user interfaces, audio clips, video clips, editorial content, and scripts and software (including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement thereof) used in connection with the Verifone Solution, constitutes proprietary information and material that is owned and/or licensed by Verifone and/or its licensors, and is protected by applicable intellectual property and other laws. Merchant agrees that Merchant shall not use such proprietary information or materials in any manner except for the purposes set forth in these Terms and Conditions. No portion of the Verifone Solution may be reproduced in any form or by any means, except as expressly permitted under these Terms and Conditions. Merchant agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Verifone Solution in any manner, and Merchant shall not exploit the Verifone Solution in any unauthorized way, including, but not limited to, by trespass or burdening network capacity. All rights in and to the Verifone Solutions (including the compilation of content, postings, links to other internet resources, and descriptions of those resources) are owned by Verifone and/or its licensors, who reserve all their rights in law and equity. THE USE OF THE VERIFONE SOLUTION EXCEPT AS EXPRESSLY PERMITTED IN THESE TERMS AND CONDITIONS IS STRICTLY PROHIBITED AND MAY INFRINGE ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT MERCHANT TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
(b) Verifone Marks. The Verifone name, Verifone logo, and other Verifone trademarks, service marks, graphics, and logos used in connection with the Verifone Solution are trademarks or registered trademarks of Verifone in the United States and/or other countries. Merchant is granted no right or license with respect to any such marks, and any use of such marks is prohibited unless except as expressly permitted hereunder in connection with Merchant’s use of the Verifone Solution.
(4) Government End Users. All Verifone software made available as part of the Verifone Solution was developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in these Terms and Conditions pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable.
C. COMPLIANCE WITH LAW.
(2) Export Controls. The Verifone Solution may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Verifone Solution, Merchant represents and warrants that Merchant is not located in any such country or on any such list. Merchant also agrees that Merchant will not use these products for any purposes prohibited by applicable law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
(3) Merchant’s Non-compliance. Merchant agrees that if Verifone reasonably believes that Merchant is in breach of this Section C, that alone shall be sufficient grounds for further action by Verifone, including, without limitation, suspension or termination of Merchant’s access to and use of the Verifone Solution, cancellation of any orders, or denial of future business, without any liability or obligation to Merchant. In addition, Merchant hereby indemnifies 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 Merchant or its directors, officers, employees, and agents of the terms and conditions contained in this Section C.
D. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY; INDEMNIFICATION.
(1) DISCLAIMER. MERCHANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT MERCHANT’S USE OF, OR INABILITY TO USE, THE VERIFONE SOLUTION OR ANY APP IS AT MERCHANT’S SOLE RISK. THE VERIFONE SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE” FOR MERCHANT’S USE, WITHOUT WARRANTIES OF ANY KIND BY VERIFONE, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO MERCHANT. VERIFONE IS NOT RESPONSIBLE FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY MERCHANT OR ITS SERVICE PROVIDERS, INCLUDING MERCHANT’S PROCESSORS. MERCHANT’S SUBMISSION OF INFORMATION THROUGH THE VERIFONE SOLUTION IS AT MERCHANT’S SOLE RISK, AND VERIFONE HEREBY DISCLAIMS ANY AND ALL LIABILITY TO MERCHANT FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY. VERIFONE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT MERCHANT’S USE OF THE VERIFONE SOLUTION (OR ANY APP) WILL MEET THE REQUIREMENTS OF MERCHANT, BE UNINTERRUPTED, ERROR-FREE, FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION AND MERCHANT AGREES THAT VERIFONE RESERVES THE RIGHT TO MODIFY, SUSPEND, OR DISCONTINUE ANY PORTION OF THE VERIFONE SOLUTION AND MAY SUSPEND, IMPOSE LIMITS ON, OR REMOVE MERCHANT’S ACCESS TO THE VERIFONE SOLUTION. VERIFONE MAY, FROM TIME TO TIME, PROVIDE ROADMAPS OR PROJECTED IMPLEMENTATIONS FOR THE VERIFONE SOLUTION; SUCH INFORMATION IS NOT BINDING ON VERIFONE AND MERCHANT SHOULD NOT RELY ON SUCH INFORMATION. NO ADVICE OR INFORMATION OBTAINED BY MERCHANT FROM VERIFONE OR FROM ANY OTHER THIRD PARTY ABOUT THE VERIFONE SOLUTION SHALL CREATE ANY WARRANTY.
(2) LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND CONDITIONS, EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) VERIFONE SHALL NOT HAVE LIABILITY TO MERCHANT OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR TRANSACTIONS, CHARGE-BACKS, EQUIPMENT PURCHASED BY MERCHANT OR ITS SUBCONTRACTORS OR AGENTS, COST OF PROCUREMENT OF SUBSTITUTE OR "COVER" SERVICES) RELATING IN ANY MANNER TO THE VERIFONE SOLUTION OR THESE TERMS AND CONDITIONS (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 CONDITIONS OR THE VERIFONE SOLUTION, REGARDLESS OF THE FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY PAID BY MERCHANT TO VERIFONE FOR THE VERIFONE SOLUTION (WHICH SHALL NOT INCLUDE ANY FEES PAID BY MERCHANT WITH RESPECT TO ANY THIRD-PARTY SERVICES (INCLUDING THIRD-PARTY APPS, AS DEFINED IN EXHIBIT A)) DURING THE SIX (6) MONTHS PRIOR TO THE CLAIM ARISING; AND (C) VERIFONE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THESE TERMS AND CONDITIONS OR THE VERIFONE SOLUTION OR ANY THIRD PARTY SERVICES (INCLUDING THIRD-PARTY APPS). THE LIMITATIONS CONTAINED IN SECTION (4)(b) OF EXHIBIT A, SECTION D(1) ABOVE, AND THIS SECTION D(2) ARE A FUNDAMENTAL PART OF THE BASIS OF VERIFONE’S BARGAIN HEREUNDER, AND VERIFONE WOULD NOT PROVIDE THE VERIFONE SOLUTION TO MERCHANT ABSENT SUCH LIMITATIONS.
(3) INDEMNITY. BY USING THE VERIFONE SOLUTION, MERCHANT AGREES, TO THE EXTENT PERMITTED BY LAW, TO FULLY INDEMNIFY, DEFEND, AND HOLD HARMLESS VERIFONE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS WITH RESPECT TO ANY CLAIMS, DEMANDS, ACTIONS, SUITS, LOSSES, SETTLEMENTS, JUDGMENTS, LIABILITIES, DAMAGES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEY’S AND EXPERTS' FEES AND COSTS) ARISING OUT OF OR RELATING TO MERCHANT’S BREACH OF THESE TERMS AND CONDITIONS, MERCHANT’S USE OF THE VERIFONE SOLUTION, OR ANY ACTION TAKEN BY VERIFONE AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THESE TERMS AND CONDITIONS OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THESE TERMS AND CONDITIONS HAS OCCURRED, IN ANY CASE WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF VERIFONE OR ANY OTHER INDEMNIFIED PARTY AND WHETHER OR NOT THE RELEVANT CLAIM HAS MERIT. MERCHANT CANNOT SUE OR RECOVER ANY DAMAGES FROM VERIFONE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS AS A RESULT OF VERIFONE'S DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN MERCHANT, TO SUSPEND OR TERMINATE MERCHANT’S ACCESS TO ANY VERIFONE SOLUTION, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF VERIFONE’S CONCLUSION THAT A VIOLATION OF THESE TERMS AND CONDITIONS HAS OCCURRED. THIS PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THESE TERMS AND CONDITIONS.
E. GOVERNING LAW; DISPUTE RESOLUTION.
(1) Governing Law. These Terms and Conditions 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, exclusive of conflict or choice-of-law rules, and the parties hereby consent to the personal and exclusive jurisdiction and venue of the state and federal courts in New York County, New York State. 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 and Conditions, 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 and Conditions shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(2) Arbitration of Disputes. PLEASE READ THIS SECTION CAREFULLY. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. 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 and Conditions or the interpretation, application, enforcement, breach, termination, or validity thereof (including any claim of inducement of these Terms and Conditions 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. 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 date of acceptance of these Terms or Use, including Rules 16.1 and 16.2 of those Rules. Notwithstanding anything herein to the contrary, the Federal Arbitration Act will govern the arbitrability of all Disputes. The arbitration shall be held in the JAMS office that is most convenient to Merchant’s corporate headquarters (“Merchant’s Office”), and it shall be conducted in the English language. If a JAMS office does not exist in the county where Merchant’s Office is located, then the arbitration will be conducted using an accredited arbitration provider selected by Verifone and reasonably acceptable to Merchant, with offices within a reasonable distance from Merchant’s Office. If Merchant initiates the arbitration, Merchant will be required to pay the first $250 of any filing fee. Verifone will pay any filing fees in excess of $250, and Verifone will pay all of the arbitration fees and costs. If Verifone initiates the arbitration, Verifone will pay all of the filing fees and all of the arbitration fees and costs. Verifone will bear all of Verifone’s attorney’s fees and costs. Merchant is entitled to recover Merchant’s reasonable attorney’s fees and costs (such fees and costs not to exceed $20,000) if Merchant prevails in the arbitration and the award Merchant receives from the arbitrator is higher than Verifone’s last written settlement offer. When determining whether Merchant’s award is higher than Verifone’s last written settlement offer, Merchant’s attorney’s fees and costs will not be included. However, if the arbitrator finds that either the substance of Merchant’s claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees shall be governed by the applicable Rules. Only Disputes involving Merchant and Verifone may be addressed in the arbitration. Disputes must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis. The arbitrator will not award relief for or against anyone who is not a party. If either party arbitrates a Dispute, neither party, nor any other person, may pursue the Dispute in arbitration as a class action, class arbitration, private attorney general action or other representative action, nor may any such Dispute be pursued on Merchant’s or Verifone’s behalf in any litigation in any court. Claims regarding any Dispute and remedies sought as part of a class action, class arbitration, private attorney general or other representative action are subject to arbitration on an individual (non-class, non- representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. This means that the arbitration may not address disputes involving other persons with disputes similar to the Disputes between Merchant and Verifone. The arbitrator may hear and determine any issue of law or fact asserted by a party as dispositive to the same extent that a court could hear and determine a motion for summary disposition (such as a motion for summary judgment under FRCP 56 by a U.S. District Court). The arbitrator will issue a decision or award in writing, briefly stating the essential findings of fact and conclusions of law. The arbitrator shall have the authority to award any legal or equitable remedy or relief that a court could order or grant under these Terms and Conditions. The arbitrator, however, is not authorized to change or alter the terms of these Terms and Conditions or to make any award that would extend to any transaction other than Merchant’s. All statutes of limitations that are applicable to any dispute shall apply to any arbitration between Merchant and Verifone. 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 parties acknowledge that these Terms and Conditions evidences a transaction involving interstate commerce. 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.
F. MISCELLANEOUS.
(1) Termination. Verifone may terminate these Terms and Conditions (a) at any time upon thirty (30) days’ notice to Merchant, or (b) if Merchant has procured the Verifone Solution via a Reseller, upon notice to Merchant in the event Verifone’s separate agreement with such Reseller terminates. Section A(10) (until all fees are paid), Merchant’s indemnity obligations under Section C(3), Section D, Section E and Section F of these Terms and Conditions shall survive any termination hereof.
(2) Entire Agreement. These Terms and Conditions constitute the entire agreement between Verifone and Merchant and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, relating to the subject matter hereof.
(3) Third Party Service Providers. Merchant acknowledges and agrees that Verifone may procure all or a part of a Verifone Solution from one or more third party service providers (each, a “Third Party Service Provider”), and that any such Third Party Service Provider may perform Verifone’s obligations hereunder, and may exercise Verifone’s rights hereunder, in connection with its provisioning of any part of a Verifone Solution. Merchant agrees that (i) any such Third Party Service Provider shall be a third party beneficiary of these Terms and Conditions, (ii) such Third Party Service Provider shall not be directly liable for any claims made by Merchant; (iii) any such Third Party Service Provider’s provisioning of its services are subject to the same waivers, disclaimers, and other limitations as are applicable to the Verifone Solutions; and (iv) any such Third Party Service Provider shall be entitled to the same rights, remedies, and protections as are afforded Verifone hereunder with respect to the Verifone Solution, and shall be entitled to enforce its rights directly against Merchant to the same extent as Verifone is entitled to enforce its rights hereunder with respect to the Verifone Solution.
(4) Severability. If any provision of these Terms and Conditions 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 and Conditions shall remain in full force and effect.
(5) Privacy; Personal Information. Merchant’s use of the Verifone Solutions and Verifone’s collection of personal information is subject to Verifone’s privacy policy, which can be accessed at https://www.verifone.com/legal, as may be updated from time to time.
(6) Collection of Technical Data. In addition to Verifone’s rights to use personal information and other data in accordance with Verifone’s privacy policy, and without restriction thereby, Merchant acknowledges and agrees that Verifone may collect and use technical data and related information in connection with Merchant’s use of the Verifone Solution, including, without limitation, technical and usage information about devices on which the Verifone Solution is used and any peripherals used therewith, which is gathered periodically by Verifone for data analytics and optimization, to facilitate the provision of the Verifone Solution, updates, support, and other services to the Merchant, and to improve any Verifone Solution. This provision shall survive any expiration or termination of Merchant’s use of the Verifone Solution and/or these Terms and Conditions.
(7) Notifications. Verifone may notify Merchant on matters related to the Verifone Solution by sending an electronic message and/or e-mail to Merchant or otherwise posting such notice via the Verifone Solution, or via a postal mail to Merchant’s mailing address provided in its Merchant Account. Notifications will be immediately effective upon the date of such notice.
(8) Electronic Contracting. Merchant’s use of the Verifone Solution includes the ability to enter into agreements and/or to make transactions electronically. MERCHANT ACKNOWLEDGES THAT MERCHANT’S ELECTRONIC SUBMISSIONS CONSTITUTE MERCHANT’S AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. MERCHANT’S AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS MERCHANT ENTERS INTO VIA THE VERIFONE SOLUTION, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
(9) Modifications to Terms and Conditions. Because the functionality and features of the Verifone Solution may change over time, Verifone reserves the right to provide modified and/or supplemental Terms and Conditions to Merchant, which modified or supplemental Terms and Conditions shall be effective immediately and replace or supplement these Terms and Conditions, as applicable. Merchant is responsible for reviewing such modified or supplemental Terms and Conditions, and continued use of any Verifone Solution following the date on which such modified or supplemental terms are made available shall constitute Merchant’s acceptance of such modified or supplemental terms. Any modified or supplemental Terms and Conditions will apply to any Verifone Solutions which Merchant has previously purchased or subscribed to, and to Merchant’s continued use of any Verifone Solution and any Apps.
Exhibit A
TERMS SPECIFIC TO VERIFONE CONNECT
In the event that Merchant has subscribed to a Verifone Solution that includes Verifone’s “Verifone Connect” solution, the terms of this Exhibit shall apply.
(1) Applicability. In connection with Merchant’s use of Verifone Connect, Merchant will have the ability to use Apps on Merchant’s supported Verifone payment devices. Such Apps may be preinstalled on Merchant’s devices by Verifone or the Reseller, or may be made available for download via Verifone’s “Merchant Marketplace”, or by such other means as Verifone may determine in its discretion.
(2) Merchant Account. Merchant may be required to register for an account with Verifone to use Verifone Connect (the “Merchant Account”). Merchant is responsible for providing, maintaining, and updating its Merchant Account information to keep such information true, accurate, current, and complete at all times. Merchant will be responsible for maintaining the confidentiality of its account information, including any usernames and/or passwords, and will be responsible for all activities that are taken under its Merchant Account, regardless of whether the activity was authorized by Merchant. In the event Merchant believes that its Merchant Account has been accessed without authorization, Merchant shall immediately notify Verifone of such belief and the reasons therefor. Merchant may not collect or harvest any personal data of any other merchant or with respect to any merchant account, including account names. Verifone shall not be liable, and disclaims all liability, resulting from Merchant’s failure to comply with any of the foregoing obligations. If Verifone determines, in its reasonable discretion, that information provided by Merchant is false, outdated, or incomplete, Verifone reserves the right to suspend or terminate a Merchant Account, without notice or liability to the applicable Merchant.
(3) Basic Use Requirements. Merchant’s use of Verifone Connect requires a supported Verifone payment device and high-speed internet access. Satisfaction of such requirements, which may change from time to time, are Merchant’s sole responsibility and non-compliance therewith may affect Merchant’s ability to access or otherwise use Verifone Connect.
(4) Third Party Apps.
(a) General. Apps developed or provided by third parties other than Verifone (each, a “Third-Party App”) may be made available for use with Verifone Connect. Merchant’s use of any Third-Party App is at the Merchant’s sole election. By using a Third-Party App, Merchant authorizes Verifone to provide the developer of such Third-Party App with any information requested by the developer of such Third-Party App, which may include Merchant’s name, email address, business address, transaction data, and any other data described in the developer’s privacy policy or terms of use for such Third-Party App. Merchant shall contact the developer directly with respect to any service or support requests or any other issues or inquiries, including the exercise of any rights Merchant may have under applicable law, with respect to a Third-Party App.
(b) NO WARRANTY; DISCLAIMER OF LIABILITY. MERCHANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT (1) VERIFONE IS NOT THE DEVELOPER OF ANY THIRD PARTY APP, (2) VERIFONE DOES NOT, AND WILL NOT, PROVIDE SUPPORT FOR ANY THIRD PARTY APP, AND (3) THE DEVELOPER OF SUCH APP IS RESPONSIBLE FOR ENSURING COMPLIANCE WITH ALL APPLICABLE DATA PROTECTION LAWS WITH RESPECT TO ANY PERSONAL DATA COLLECTED FROM SUCH APP, AND VERIFONE DOES NOT ASSUME ANY LIABILITY FOR THE HANDLING OR PROCESSING BY THE DEVELOPER OR OTHER THIRD PARTY OF ANY SUCH PERSONAL DATA. ADDITIONALLY, VERIFONE DOES NOT MAKE ANY REPRESENTATIONS WITH RESPECT TO, DOES NOT ENDORSE OR GUARANTEE, AND DOES NOT ACCEPT, AND EXPRESSLY DISCLAIMS, ANY RESPONSIBILITY OR LIABILITY FOR, ANY THIRD PARTY APP, THE QUALIFICATIONS, BACKGROUND, OR IDENTITIES OF THE DEVELOPER THEREOF, OR THE ABILITY OF SUCH DEVELOPER TO DISTRIBUTE AND/OR SUPPORT THE APP. MERCHANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT MERCHANT’S USE OF ANY THIRD PARTY APP IS AT MERCHANT’S OWN RISK, AND THAT VERIFONE SHALL NOT BE LIABLE TO MERCHANT FOR ANY THIRD PARTY APP.
(5) App Fees. The fees (or the method of calculating such fees) to be charged for Apps purchased or subscribed to by Merchant (“App Fees”) will be communicated to Merchant from time to time. As a general matter, App Fees are determined by the developer of the App and may be adjusted from time to time at the developer’s sole discretion.
(6) Payment of App Fees. When establishing its Merchant Account, Merchant will be required to provide a payment method acceptable to Verifone. By providing such payment method, Merchant authorizes Verifone to store such payment information and charge Merchant any App Fees via such payment method. Alternatively, Verifone and the developer and/or Reseller (as applicable) may agree on an alternative method of charging Merchant for the App Fees, including by means of the developer or the Reseller invoicing Merchant the App Fees directly. Merchant is solely responsible for timely payment of any App Fees for Apps purchased or subscribed to for use on its devices and for maintaining a valid payment method for payment of all App Fees at all times.
(7) Taxes. Merchant is responsible for any Taxes, and must pay App Fees without any reduction for Taxes. Merchant must comply with any and all applicable tax laws, including the reporting and payment of any Taxes arising in connection with Merchant’s use of the Verifone Solutions or the purchase of Apps for use in connection with the Verifone Solutions. The reporting and payment of any such applicable taxes are Merchant’s responsibility. If Verifone, Reseller, or the developer of an App is obligated to collect or pay Taxes, the Taxes will be charged to Merchant. “Taxes”, for purposes of this paragraph, means any duties, customs fees, sales, use, goods and services (GST), value added (VAT) or other taxes (other than income tax) associated with the App, including any related penalties or interest.
(8) EULA; Right to Use. By downloading, installing, and/or using an App (including any Third-Party Apps) made available by Verifone, Merchant acknowledges and agrees to be bound by the Standard Application End User License Agreement, which is attached as Exhibit A-1; provided, however, that if an App is accompanied by a separate end user license agreement or other terms specific to such App, the terms thereof shall govern Merchant’s use of the App and Merchant’s relationship with the developer of such App. Merchant’s right to download, install, and use such App are subject to Verifone’s right to make such App available to Merchant for use with Verifone Connect.
(9) Apps Licensed Directly from Developer. Verifone may authorize select developers to directly license Apps to merchants for use with Verifone Solutions (“Direct License Apps”). In the event that Merchant purchases a Direct License App from a developer, Merchant’s use of such App shall be subject to such terms as are agreed between Merchant and such developer, and the provisions of Section 8 above shall not apply.
(10) Refunds of App Fees. Requests for refunds of App Fees (as well as any fees paid directly to the developer of the App) must be made directly to the developer, who will determine, in its discretion, whether it will provide a refund, and whether such refund will be all or a portion of the fees paid. Verifone disclaims all responsibility for providing refunds for Third-Party Apps. If a refund is granted for any App, Merchant may no longer be able to access the App. Subject to the foregoing, all App Fees paid are final and non-refundable and there will be no credits, refunds, or adjustments of any kind.
(11) Updates. From time to time, Verifone may update and/or modify Verifone Connect, which may include software updates that are required to be installed by Merchant (or Reseller on behalf of Merchant), or the removal of certain functionality or features. If applicable, Merchant agrees to accept and install such updates promptly following the availability of such update. Failure to promptly install such updates may result in restriction, suspension, or termination of Merchant’s access to Verifone Connect. Updates to Apps may be made available via the applicable Verifone Solution and automatically downloaded and installed onto Merchant’s payment devices. Failure to install an update to an App in a prompt manner may result in such App failing to perform as intended or restriction of Merchant’s access to such App. Verifone may update an App to a new version of such App if Verifone determines that the update will fix a critical security vulnerability related to the App.
(12) Removal of Apps. Under certain circumstances, Verifone shall have the right to immediately disable and/or remove an App from Merchant’s payment devices, which circumstances include Verifone’s determination that an App violates the intellectual property rights or other rights of a third party; fails to comply with any applicable law or card association rules; or contains a virus or constitutes malware, spyware, or otherwise poses a security threat to Verifone’s network or Merchant’s payment devices.
(13) Feedback Submitted by Merchant. As part of Merchant’s use of Verifone Connect and the Apps, Merchant may have an opportunity to publish, transmit, submit, or otherwise post (collectively, “Post”) reviews, feedback, comments, or other materials (collectively, “User Material”). By Posting User Material, Merchant grants Verifone a limited, non-exclusive, fully-paid, royalty-free, and sublicensable license to use, display, reproduce, distribute, modify, delete from, add to, prepare derivative works of, publicly perform, and publish such User Material in connection with its provision of the Verifone Solutions, in perpetuity, in any media formats and any media channels now known or hereinafter created, and to publish Merchant’s name and any contact information in connection therewith. Merchant further grants other users of Verifone Connect a non-exclusive, limited license to access Merchant’s User Material, and to view, use, display, reproduce, distribute, and perform such User Material as permitted through the functionality of the Verifone Solutions and under these Terms and Conditions. By submitting User Material, Merchant represents and warrants that it owns the User Material or otherwise has the right to grant the above licenses and that Posting of the User Material does not (a) violate any right of any party, including privacy rights, publicity rights, and intellectual property rights or (b) contain any viruses, adware, spyware, worms, or other malicious code or any content or file that may have the effect of compromising any security or access control feature of the Verifone Solutions. Verifone will remove all User Material if Verifone is notified that such User Material infringes on another person's rights or contains any such malicious content. Notwithstanding the rights granted herein, Verifone shall be under no obligation to use or make public any User Material, and Verifone acknowledges and agrees that it does not possess any ownership rights over any User Material. Merchant acknowledges that Merchant may be exposed to other User Material or other content from a variety of sources (including, without limitation, communications with other users through public postings, or other similar features), and that Verifone is not responsible for the quality, accuracy, usefulness, or intellectual property rights of or relating to such User Material and other content. Merchant acknowledges that by Posting User Material, Merchant may be displaying, providing, or otherwise revealing information that may be used to identify Merchant, and Verifone does not guarantee any confidentiality with respect to any User Material or such information. No compensation will be paid with respect to any User Material Posted by Merchant.
(14) Linked Sites; Third Party Information. Merchant acknowledges that Verifone Connect and the Apps may contain links to third party websites, and may incorporate information obtained from linked sites or third parties. Any linked site or third party information is not under the control of Verifone, and Verifone is not responsible for examining, evaluating, or monitoring the actions, products, services, or content of any linked site or third party information, including, without limitation, the accuracy, copyright compliance, legality, decency, links, or any other aspect of the linked site or third party information. Verifone is not responsible for any form of transmission received from any linked site, nor is Verifone responsible if the linked site is inaccessible or otherwise not working appropriately. Verifone provides such links and information to Merchant only as a convenience, and the inclusion of any link to a linked site or third party information does not imply endorsement by Verifone of the site or any association with its operators. Merchant is responsible for viewing and abiding by the privacy statements and any other terms posted on any linked site. Any interaction or dealings with third parties conducted through a linked site, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between Merchant and the applicable third party.
Exhibit A-1 to Terms and Conditions for Verifone Services and Solutions
Standard Application End User License Agreement
You, acting as an authorized representative of your employer, company, or such other legal entity on whose behalf you are acting (“Merchant”) agree to terms of this Standard Application End User License Agreement (this “Standard EULA”), which shall apply to any application made available to Merchant via Verifone Connect (an “App”) which is not subject to a separate an end user license agreement or other terms specific to such App. Merchant’s license to an App under this Standard EULA (the “Licensed App”) is granted by (a) with respect to an App developed by a third party other than Verifone, the developer thereof (the “Developer”), and (b) with respect to an App developed by Verifone, Verifone. Such Developer of a third party App or Verifone, as applicable (“Licensor”), reserves all rights in and to the Licensed App not expressly granted to Merchant under this Standard EULA.
(1) Scope of License. Licensor grants to Merchant a limited, non-exclusive license to perform, display, and use the Licensed App on the devices and in the supported territories for which Merchant (or Reseller on behalf of Merchant) has subscribed to or purchased the Licensed App. Merchant may not rent, lease, lend, sell, transfer redistribute, or sublicense the Licensed App and, if Merchant sells or otherwise disposes of any device on which the App has been installed, Merchant must remove the Licensed App from such device before doing so. Merchant may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed App, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed App). Merchant may not use the Licensed App to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party. Any attempt to do so is a violation of the rights of the Licensor. If Merchant breaches this restriction, Merchant may be subject to prosecution and/or claims for damages. The terms of this license will govern any updates to the Licensed App provided by Licensor that replace and/or supplement the original Licensed App, unless such update is accompanied by a separate license in which case the terms of that license will govern.
(2) Termination. The license granted hereunder is effective until terminated by Merchant or Licensor. Merchant’s rights under this license will terminate automatically without notice from the Licensor if Merchant fails to comply with any terms of the terms of this Standard EULA. Upon termination of the license, Merchant shall cease all use of the Licensed App, remove the Licensed App from any devices on which the App has been installed, and destroy all copies, full or partial, of the Licensed App.
(3) Payment of Fees. You agree to pay the applicable fees required for use of the Licensed App. The payment model, fees, and other information related thereto may be found within the Licensed App, on Licensor’s website, or may otherwise be made available on Verifone Connect by Licensor. Licensor, or Verifone on behalf of Licensor, reserves the right to suspend and/or revoke your access to and use of the Licensed App if you fail to pay any fees when due. You shall not access or use the Licensed App in a manner intended to avoid incurring fees.
(4) Collection of Technical Data. Merchant agrees that Licensor may collect and use technical data and related information, including, without limitation, technical information about the devices on which the Licensed App has been installed and any peripherals used therewith, which is gathered periodically to facilitate the provision of the Licensed App, updates, support, and other services to Merchant (if any) related to the Licensed App. Licensor may use this information to improve its products, or to provide services or technologies to Merchant.
(5) External Services; Third-Party Materials.
(a) The Licensed App may enable access to Licensor’s and/or third-party services and websites (collectively and individually, “External Services”). External Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third Party Materials”), or provide links to certain third party web sites. By using the External Services, Merchant acknowledges and agrees that none of Licensor, its directors, officers, employees, affiliates, agents, contractors, and licensors are responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. None of Licensor, its directors, officers, employees, affiliates, agents, contractors, and licensors warrant or endorse, and shall not have any liability or responsibility to Merchant or any other person for, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to third party websites are provided solely as a convenience to Merchant. Merchant understands that by using any External Services, Merchant may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, Merchant agrees to use the External Services at Merchant’s sole risk and that none of Licensor, its directors, officers, employees, affiliates, agents, contractors, and licensors shall have any liability to Merchant for content that may be found to be offensive, indecent, or objectionable.
(b) Merchant agrees that the External Services may contain proprietary content, information and material that is owned by Licensor and/or its agents or licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that Merchant will not use such proprietary content, information or materials in any way except as permitted in this Standard EULA or in any manner that is inconsistent with the terms of this Standard EULA or that infringes any intellectual property rights of a third party. No portion of the External Services may be reproduced in any form or by any means. Merchant agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the External Services, in any manner, and Merchant shall not exploit the External Services in any unauthorized way whatsoever, including but not limited to, using the External Services to transmit any computer viruses, worms, Trojan horses or other malware, or by trespass or burdening network capacity. Merchant further agrees not to use the External Services in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party, and that none of Licensor, its directors, officers, employees, affiliates, agents, contractors, and licensors are responsible for any such use by Merchant, nor for any harassing, threatening, defamatory, offensive, infringing, or illegal messages or transmissions that Merchant may receive as a result of using any of the External Services.
(c) External Services and Third Party Materials that may be accessed from, displayed on or linked to from the Licensed App are not available in all languages or in all countries or regions. Licensor makes no representation that such External Services and/or Third Party Materials are appropriate or available for use in any particular location. To the extent Merchant chooses to use or access such External Services and/or Third Party Materials, Merchant does so at its own initiative and is responsible for compliance with any applicable laws, including but not limited to applicable local laws. Licensor reserves the right to change, suspend, remove, or disable access to any External Services at any time without notice. In no event will Licensor be liable for the removal of or disabling of access to any such External Services. Licensor may also impose limits on the use of or access to certain External Services, in any case and without notice or liability.
(6) DISCLAIMER OF WARRANTY. MERCHANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT MERCHANT’S USE OF, OR INABILITY TO USE, THE LICENSED APP IS AT MERCHANT’S SOLE RISK. THE LICENSED APP IS PROVIDED “AS IS” AND “AS AVAILABLE” FOR MERCHANT’S USE, WITHOUT WARRANTIES OF ANY KIND BY LICENSOR, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO MERCHANT. LICENSOR IS NOT RESPONSIBLE FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY MERCHANT. MERCHANT’S SUBMISSION OF INFORMATION THROUGH THE LICENSED APP IS AT MERCHANT’S SOLE RISK, AND LICENSOR HEREBY DISCLAIMS ANY AND ALL LIABILITY TO MERCHANT FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY. LICENSOR DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT MERCHANT’S USE OF THE LICENSED APP WILL MEET THE REQUIREMENTS OF MERCHANT, BE UNINTERRUPTED, ERROR-FREE, FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION AND MERCHANT AGREES THAT LICENSOR RESERVES THE RIGHT TO MODIFY, SUSPEND, OR DISCONTINUE ANY PORTION, FEATURE, OR FUNCTIONALITY OF THE LICENSED APP AND MAY SUSPEND, IMPOSE LIMITS ON, OR REMOVE MERCHANT’S ACCESS TO THE LICENSED APP. LICENSOR MAY, FROM TIME TO TIME, PROVIDE ROADMAPS OR PROJECTED IMPLEMENTATIONS FOR THE LICENSED APP; SUCH INFORMATION IS NOT BINDING ON LICENSOR AND MERCHANT SHOULD NOT RELY ON SUCH INFORMATION. NO ADVICE OR INFORMATION OBTAINED BY MERCHANT FROM LICENSOR OR FROM ANY OTHER THIRD PARTY ABOUT THE LICENSED APP SHALL CREATE ANY WARRANTY.
(7) LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS STANDARD EULA, EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) LICENSOR SHALL NOT HAVE LIABILITY TO MERCHANT OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR TRANSACTIONS, CHARGE-BACKS, IN-APP PURCHASES, EQUIPMENT PURCHASED BY MERCHANT OR ITS SUBCONTRACTORS OR AGENTS, COST OF PROCUREMENT OF SUBSTITUTE OR “COVER” SERVICES) RELATING IN ANY MANNER TO THE LICENSED APP OR THIS STANDARD EULA (WHETHER ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT OR OTHERWISE), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGE; (B) IN ANY CASE, LICENSOR’S ENTIRE LIABILITY RELATING IN ANY MANNER TO THIS STANDARD EULA OR THE LICENSED APP, REGARDLESS OF THE FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO ONE HUNDRED DOLLARS ($100.00); AND (C) LICENSOR SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE LICENSED APP OR THIS STANDARD EULA. THE LIMITATIONS CONTAINED IN SECTION 6 OF THIS STANDARD EULA, AND THIS SECTION 7 ARE A FUNDAMENTAL PART OF THE BASIS OF LICENSOR’S BARGAIN HEREUNDER, AND LICENSOR WOULD NOT PROVIDE THE LICENSED APP TO MERCHANT ABSENT SUCH LIMITATIONS.
(8) Merchant may not use or otherwise export or re-export the Licensed App except as authorized by United States law and the laws of the jurisdiction in which the Licensed App was obtained. In particular, but without limitation, the Licensed App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed App, Merchant represents and warrants that Merchant is not located in any such country or on any such list. Merchant also agrees that Merchant will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
(9) The Licensed App and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
(10) Governing Law. This Standard EULA 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, exclusive of conflict or choice-of-law rules, and the parties hereby consent to the personal and exclusive jurisdiction and venue of the state and federal courts in New York County, New York State. 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 this Standard EULA, 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 this Standard EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(11) Arbitration of Disputes. PLEASE READ THIS SECTION CAREFULLY. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. 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 this Standard EULA or the interpretation, application, enforcement, breach, termination, or validity thereof (including any claim of inducement of these Terms and Conditions 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. 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 date of acceptance of these Terms or Use, including Rules 16.1 and 16.2 of those Rules. Notwithstanding anything herein to the contrary, the Federal Arbitration Act will govern the arbitrability of all Disputes. The arbitration shall be held in the JAMS office that is most convenient to Merchant’s corporate headquarters (“Merchant’s Office”), and it shall be conducted in the English language. If a JAMS office does not exist in the county where Merchant’s Office is located, then the arbitration will be conducted using an accredited arbitration provider selected by Licensor and reasonably acceptable to Merchant, with offices within a reasonable distance from Merchant’s Office. If Merchant initiates the arbitration, Merchant will be required to pay the first $250 of any filing fee. Licensor will pay any filing fees in excess of $250, and Licensor will pay all of the arbitration fees and costs. If Licensor initiates the arbitration, Licensor will pay all of the filing fees and all of the arbitration fees and costs. Licensor will bear all of Licensor’s attorney’s fees and costs. Merchant is entitled to recover Merchant’s reasonable attorney’s fees and costs (such fees and costs not to exceed $20,000) if Merchant prevails in the arbitration and the award Merchant receives from the arbitrator is higher than Licensor’s last written settlement offer. When determining whether Merchant’s award is higher than Licensor’s last written settlement offer, Merchant’s attorney’s fees and costs will not be included. However, if the arbitrator finds that either the substance of Merchant’s claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees shall be governed by the applicable Rules. Only Disputes involving Merchant and Licensor may be addressed in the arbitration. Disputes must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis. The arbitrator will not award relief for or against anyone who is not a party. If either party arbitrates a Dispute, neither party, nor any other person, may pursue the Dispute in arbitration as a class action, class arbitration, private attorney general action or other representative action, nor may any such Dispute be pursued on Merchant’s or Licensor’s behalf in any litigation in any court. Claims regarding any Dispute and remedies sought as part of a class action, class arbitration, private attorney general or other representative action are subject to arbitration on an individual (non-class, non- representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. This means that the arbitration may not address disputes involving other persons with disputes similar to the Disputes between Merchant and Licensor. The arbitrator may hear and determine any issue of law or fact asserted by a party as dispositive to the same extent that a court could hear and determine a motion for summary disposition (such as a motion for summary judgment under FRCP 56 by a U.S. District Court). The arbitrator will issue a decision or award in writing, briefly stating the essential findings of fact and conclusions of law. The arbitrator shall have the authority to award any legal or equitable remedy or relief that a court could order or grant under this Standard EULA. The arbitrator, however, is not authorized to change or alter the terms of this Standard EULA or to make any award that would extend to any transaction other than Merchant’s. All statutes of limitations that are applicable to any dispute shall apply to any arbitration between Merchant and Licensor. 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 parties acknowledge that this Standard EULA evidences a transaction involving interstate commerce. 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.
Exhibit B
TERMS SPECIFIC TO RENTAL DEVICES
The following terms shall apply in the event the Verifone Solution subscribed by Merchant includes rental of Verifone payment devices (“Rental Devices”):
(a) Verifone Property. The Rental Devices, as well as all accessories provided with such Rental Devices, shall remain the property of Verifone. Merchant shall have no right, title or interest therein except as a lessee under these Terms and Conditions. Merchant shall keep all Rental Devices and accessories free and clear from all liens, including any direct or indirect charge, encumbrance, lien, security interest, legal process or claim against the Rental Devices and accessories. Merchant may not assign, hypothecate, sublet, sell, transfer, permit the sale of or part with possession of all or any of the Rental Devices, accessories or interest in these Terms and Conditions, without Verifone’s prior written consent. If Merchant fails to pay any undisputed fees when due, and fails to cure such failure within ten (10) business days of written notice thereof, Verifone may, at any time thereafter enter, with or without legal process, any premises where any Rental Device may be, and repossess and remove such Rental Device and accessories. Merchant hereby waives any claim of trespass or right of action for damages by reason of such entry and repossession. In addition, Merchant shall pay to Verifone any actual additional expenses incurred by Verifone in collection efforts.
(b) Loss and Damage. Merchant assumes and shall bear the entire risk of loss or damage to the Rental Devices and accessories from any use whatsoever from the date of delivery of the Rental Devices to the Merchant site, until such Rental Devices and accessories are returned to Verifone. No loss or damage shall relieve Merchant from the obligation to make payments hereunder or to comply with any other obligation under these Terms and Conditions. In the event of a loss of a Rental Device or accessory, or destruction or damage to a Rental Device or accessory that is not covered by the Verifone Solution, Merchant shall immediately notify Verifone thereof (and, if applicable, the Reseller). With respect to any such Rental Device, Merchant shall be obligated to pay Verifone’s standard non-return fee for such Device (the “Non-Return Fee”). Upon such payment, Verifone shall ship Merchant a new or refurbished replacement Rental Device. At all times payments for the Verifone Solution for such Rental Device shall continue in effect. With respect to such accessories, Merchant shall be obligated to pay Verifone’s then current standard price for such accessory and Verifone will ship a new or refurbished replacement accessory to Merchant.
(c) Return of Rental Devices. Upon termination of the Terms and Conditions, or at such time as Verifone has completed the deactivation process for a Rental Device pursuant to Merchant’s device deactivation request made in accordance with the procedures established by Verifone, Merchant shall return such Rental Device (and all accessories provided with such Rental Device) to Verifone (if applicable, through its Reseller). Accessories must be returned with the applicable Rental Device. When returning a Rental Device, a Material Return Authorization number is required. If a Rental Device and all of its accessories are not returned within thirty (30) days of termination or completion of deactivation, Merchant shall be obligated to pay (i) the Non-Return Fee for such Rental Device, and (ii) Verifone’s then current standard price for non-returned accessories. If, upon return of the Rental Device, Verifone determines that the Rental Device requires repair that is not covered by the services provided under the applicable Verifone Solution, Merchant shall be required to pay for such services at Verifone’s standard fees.
(d) Special Power of Attorney. Merchant hereby grants to Verifone a purchase money security interest in all Rental Devices and all accompanying accessories shipped to Merchant, as security for the performance by Merchant of all of Merchant’s obligations arising under these Terms and Conditions. Verifone is hereby authorized by Merchant to cause these Terms and Conditions or any other statement or other instrument in respect of these Terms and Conditions showing the interest of Verifone in the Rental Device and accompanying accessories, including Uniform Commercial Code financing statements, to be filed and recorded, and Merchant grants to Verifone the right to execute Merchant’s name thereto.