END USER LICENSE AGREEMENT AND LIMITED WARRANTY (“EULA”)
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE USING THE SOFTWARE. ENVISIONWARE, INC. (“ENVISIONWARE”) IS WILLING TO LICENSE THE SOFTWARE TO YOU AS THE INDIVIDUAL, THE ORGANIZATION, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE (REFERRED TO AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS EULA.
UPON AND AS OF THE DATE ENVISIONWARE SENDS AN EMAIL TO YOU (THE “EFFECTIVE DATE”) ISSUING CREDENTIALS TO LOG INTO ENVISIONWARE’S WEBSITE FROM WHERE THE SOFTWARE MAY BE DOWNLOADED, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS EULA.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, DO NOT ATTEMPT TO DOWNLOAD OR INSTALL THE SOFTWARE, OR, IF INSTALLED, MAKE NO FURTHER USE OF THE SOFTWARE, AND NOTIFY IN WRITING ENVISIONWARE OR THE RESELLER FROM WHOM IT WAS ACQUIRED WITHIN THIRTY (30) DAYS OF PURCHASE, AND THE PURCHASE PRICE WILL BE REFUNDED.
A. You may:
i. use the Software on the quantity and type of computers indicated on EnvisionWare invoice. You may make that number of copies of the Software licensed to you by EnvisionWare.
ii. make one copy of the Software for archival purposes, or copy the Software onto the hard disk of your computer and retain the original for archival purposes;
iii. use the Software on a network, provided that you have a licensed copy of the Software for each computer that can access the Software over that network; and,
iv. make printed copies of electronic documentation for your internal use.
B. You may not:
i. transfer, assign, convey, sublicense, rent or lease the Software (or any portion thereof) to another person or entity or unlicensed division, subsidiary, or affiliate (or to anyone other than the entity named as licensee as appearing on the software splash screen), other than to a successor agency, and any transfer in violation hereof shall be of no power or effect;
ii. distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes, except as expressly permitted under this Agreement;
iii. reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover, modify or use the source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), or create derivative works from the Software (any such modifications shall automatically be owned by EnvisionWare upon creation);
iv. utilize any equipment, device, software, or other means designed to circumvent or remove any form of product key or copy protection used by EnvisionWare in connection with the Software, or use the Software together with any authorization code, product key, serial number, or other copy protection device not supplied by EnvisionWare or through an authorized distributor or reseller;
v. use the Software to develop or facilitate development of a product which is competitive with any EnvisionWare product offerings;
vi. post or otherwise publish electronic documentation of the Software for access outside the licensed organization;
vii. use a previous version or copy of the Software after you have installed a replacement set or an upgraded version and, upon upgrading the Software, all copies of the prior version must be uninstalled or rendered unusable;
viii. use a later version of the Software than is provided in the email with the login credentials except as provided under the Software Product Warranty, unless you have purchased maintenance and update service or have otherwise separately acquired the right to use such later version;
ix. remove any product identification, proprietary, copyright or other notices contained in the Software;
x. provide any product key or login information to a third party; or
xi. use the Software or product keys in any manner not expressly authorized by this EULA.
2. Thirty Day Money Back Guarantee: If you are the original licensee of the Software and are dissatisfied with it for any reason, and if at any time during the thirty (30) day period following the Effective Date you email EnvisionWare confirming your complete removal and deletion of the complete product and provide a signed statement to EnvisionWare attesting to removal of all software components, then EnvisionWare will provide a full refund, subject to the provisions of the Hardware Return Policy below. Notwithstanding the foregoing sentence, in the event sufficient funds for the performance of this Agreement are not appropriated by you in any fiscal year covered by this Agreement, you may terminate this Agreement by providing thirty (30) days’ prior written notice, provided that you shall pay all amounts owed up to the effective date of such termination and EnvisionWare shall be reimbursed any resulting unamortized, reasonably incurred, nonrecurring costs. EnvisionWare will not be reimbursed any costs amortized beyond the initial term of the Agreement.
3. Hardware Return Policy: Custom printed RFID tags, manufactured, built-to-order or custom-configured Hardware as designated on a Quotation, such as but not limited to, kiosks or sorters, may not be returned or canceled for any reason. Custom items include any item listed in an EnvisionWare quotation, product description or order form as being a custom item, or any item which is modified by EnvisionWare after installation. Standard Hardware products may be accepted for return within ninety (90) days of the date of invoice subject to advance, written approval expressed in the form of an EnvisionWare Return Merchandise Authorization (“RMA”). EnvisionWare, at its sole discretion, may grant the right to return standard Hardware products during this return period. Any such returns are subject to a 20% restocking fee unless EnvisionWare determines that the cause of the return is a result of an error on the part of EnvisionWare, in which case EnvisionWare may waive all or part of the restocking fee. No Hardware product will be accepted for return for ANY reason without a Return Merchandise Authorization issued by EnvisionWare. The RMA number must be clearly displayed on any packaging shipped to EnvisionWare. Products returned without an RMA number on the package will be refused. Any return for any reason, whether for an authorized RMA or for warranty support must be shipped to EnvisionWare freight prepaid. Equipment serviced under warranty will be returned freight prepaid.
4. Limited Warranty; Disclaimer:
A. Software Product Warranty: EnvisionWare warrants that the Software as distributed operate in substantial conformity with the documentation (the “Software Product Warranty”) for a period of one (1) year from the delivery of the Software to you (the “Software Warranty Period”). This is the sole warranty EnvisionWare provides for all Software supplied by EnvisionWare, unless specifically stated otherwise in EnvisionWare’s quotation. EnvisionWare does not warrant that your use of the Software will be uninterrupted or error-free. EnvisionWare’s sole liability (and your sole remedy) in the event of a breach of this Product Warranty will be that EnvisionWare will, in EnvisionWare’s sole discretion, (A) use commercially reasonable efforts to provide you with an error correction or a work-around which corrects the reported non-conformity or (B) if EnvisionWare determines such remedies to be impracticable within a reasonable period of time, refund the money you paid for the Software being returned. EnvisionWare does not warrant that the Software will meet your requirements or that operation of the Software will be uninterrupted or that the Software will be error-free. EnvisionWare provides Software product support through the reseller from whom you purchased the Software or directly from EnvisionWare for a period of twelve (12) months from date of delivery of the Software.
B. Hardware Product Warranty: EnvisionWare warrants that EnvisionWare-branded hardware as distributed will be free from material defects (the “Hardware Product Warranty”) for a period of one (1) year from the date of delivery of the EnvisionWare-brand hardware to you (the “Hardware Warranty Period”). Other Hardware components supplied to you by EnvisionWare that are not manufactured or branded by EnvisionWare are covered by the warranties provided by the product manufacturer. EnvisionWare shall have no obligation with respect to a warranty claim unless notified of such claim within the applicable Software or Hardware Warranty Period. The term “delivery” in this Section 4 means, with respect to Software, the date of invoice, and, with respect to Hardware, “delivery” means the date that the Hardware is delivered to your facility.
C. Exclusions: The above warranties shall not apply: (i) to the extent of issues or problems if the Software or Hardware is used with hardware or software not specified in the documentation; (ii) if any modifications are made to the Software or Hardware by you or any third party; (iii) to defects in the Software or Hardware that are due to accident, abuse or improper use by you or your contractors; or (iv) to any evaluation version or other Software or Hardware provided on a no-charge or evaluation basis. Any replacement Software or Hardware will be warranted for the remainder of the original applicable Software Warranty Period or Hardware Warranty Period.
D. Professional Services Warranty. For any Professional Services provided pursuant to Section 13 below, EnvisionWare warrants that the services will be performed in a workmanlike manner, and that if any Professional Services are not so performed and if you notify EnvisionWare in writing within thirty (30) days after the provision of the particular Professional Service that the services are not performed properly, EnvisionWare will re-perform such services at no charge to you (the “Professional Services Warranty”). Your sole and exclusive remedy of any breach of this Professional Services Warranty is for EnvisionWare to re-perform such services.
E. THE ABOVE SOFTWARE PRODUCT WARRANTY AND HARDWARE PRODUCT WARRANTY ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED. THE SOFTWARE PRODUCT WARRANTY AND THE HARDWARE PRODUCT WARRANTY GIVE YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
F. EnvisionWare uses virus protection scanning software to scan the Software prior to installation and to the best of EnvisionWare’s knowledge as of the installation date, the Software, when installed, does not contain or otherwise introduce any computer virus or any harmful or destructive code which could damage or harm your computers; however, EnvisionWare cannot guarantee that benign or harmful viruses or other malware will not enter your computers or systems.
5. Personal Information:
A. In the event that your (or your users’) use of the Software currently or in the future involves the transmitting, uploading, downloading, storage, management, manipulation or other use of personal information (as defined by the Gramm-Leach-Bliley Act, Payment Card Industry Security Standards Council or other applicable standards or rules relating to electronic transaction processing and personal information, such information referred to herein as “Personal Information”), you agree to the following provisions:
i. You shall maintain as confidential any Personal Information.
ii. You covenant that you have, as of the Installation Date become and currently are PCI and HIPAA (as applicable) compliant and shall maintain compliance and/or certification under the PCI (Payment Card Industry), PCI-DSS, HIPAA and other relevant and applicable standards relating to electronic transaction processing and personal healthcare information existing as of the Effective Date and as promulgated thereafter.
iii. If you are de-certified, have your compliance proof expire or are threatened with de-certification, you shall notify EnvisionWare in writing within ten (10) days of such de-certification or threat thereof.
B. EnvisionWare shall use commercially reasonable technical, organizational, and administrative data security measures designed to maintain the security and confidentiality of your Personal Information entered into the Software, but EnvisionWare is not liable for the confidentiality of any Personal Information in the event of unauthorized access, theft or use of such Personal Information, either by you, your users, or by third parties who access such Personal Information through your systems or unauthorized use of your login credentials, other than to the extent due to the negligence of EnvisionWare or its representatives, agents, or contractors, in breach of EnvisionWare’s obligations under this Agreement.
C. EnvisionWare acknowledges that you may be required to periodically demonstrate to third parties your compliance and that of your applicable vendors with the PCI-DSS standards (Payment Card Industry Data Security Standard) of all the system components used to process, store or transmit “PCI cardholder data” (as that term is defined by PCI-DSS), and any other component that resides on the same network segment that those system components, hereafter known as “System Components in Scope.” Some of those system components and/or processes have been outsourced to EnvisionWare’s service providers (e.g., Verifone, Payment Express, Chase E-xact, SecurePay, or the like) (“Service Providers”). Those portions of the system hardware and software developed by EnvisionWare are out of scope for PCI compliance since no PCI cardholder data passes through any EnvisionWare-developed component. Accordingly, EnvisionWare is not required to be PCI compliant. All System Components in Scope are provided by Service Providers.
Service Providers will achieve and maintain PCI DSS compliance against the current version of PCI DSS published on the PCI SSC (PCI Security Standards Council) website. EnvisionWare’s Service Providers with System Components in Scope have represented to EnvisionWare that they are compliant. As evidence of compliance, Service Providers will provide, when requested, a current attestation of compliance (“AOC”) signed by a PCI QSA (Qualified Security Assessor). AOCs are available for download from EnvisionWare's Customer Center on EnvisionWare’s website at support.envisionware.com. Service Providers have represented to EnvisionWare that they will create and maintain reasonably detailed, complete and accurate documentation describing the systems, processes, network segments, security controls, and dataflow used to receive, transmit, store and secure Customer’s PCI cardholder data. Such documentation will conform to the most current version of PCI DSS. Service Providers have represented to EnvisionWare that they will, upon written request by you, make such documentation and the individuals responsible for implementing, maintaining and monitoring those system components and processes available to: a) QSAs, forensic investigators, consultants or attorneys retained by you to facilitate audit and review of your PCI-DSS compliance and b) your IT Audit Staff.
EnvisionWare maintains protective coverage for PCI breach protection in the United States in the amount of $100,000.00 per breach incident (not per individual affected), which will cover the costs of responding to a breach or a suspected breach caused by the eCommerce system.
D. The obligations of the parties under this Section 5 shall survive any expiration or termination of this EULA.
A. CUSTOMER DATA. In connection with the Software and any related hardware or services provided by EnvisionWare, EnvisionWare may collect and maintain data and information provided by you, your patrons and users (collectively, “Customer Data”). As between EnvisionWare and you, all Customer Data shall be and remain owned by you and be your property. EnvisionWare shall maintain the aspects of all Customer Data that identify an individual as confidential. All third parties authorized by EnvisionWare which may have access to the Customer Data shall be under obligations of confidentiality to maintain the Customer Data as confidential.
B. USE OF CUSTOMER DATA. EnvisionWare shall have the right to use Customer Data in connection with EnvisionWare’s business, provided that such data shall be Anonymized or aggregated such that Personal Information has been de-identified so that one could not link anonymized information back to a specific individual (“Anonymized Data”). “Anonymize” means to either (1) irreversibly process Personal Information in such a way that the data can no longer be attributed to a specific individual, or (2) to process such information in such a way that the data can no longer be attributed to a specific individual without the use of additional information, and where such additional information is kept separate and under adequate security to prevent unauthorized re-identification of a specific individual. All such Anonymized Data shall be the sole property of EnvisionWare. EnvisionWare may use, disseminate, share, or transfer the Anonymized Data or any portion thereof in any way EnvisionWare chooses.
C. ENVISIONWARE DATA. EnvisionWare may also collect data and information in connection with the service that EnvisionWare provides generally (but not including Customer Data) through its services (“EnvisionWare Data”). You acknowledge and consent that the Software may communicate (e.g., via an outbound or inbound call using SSL) with EnvisionWare’s servers (which may be hosted by a third-party service provider) and support personnel, or vice versa, to communicate diagnostic, event logs, support, licensing, compliance, and other information (which is included in the definition of EnvisionWare Data). Some communication may be done automatically by the Software without your needing to be involved, other communication may be at your initiation (e.g., uploading logs) or initiated by EnvisionWare. All such EnvisionWare Data shall be the sole property of EnvisionWare.
7. Confidential Information: Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by EnvisionWare (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of EnvisionWare without any marking or further designation except as such disclosure is required by FOIA requirements. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. The obligations under this Section 7 shall, with respect to Confidential Information, continue for a period of two (2) years after disclosure and, with respect to any information considered by and treated as a trade secret by the Disclosing Party, continue until the trade secret status has been lost.
A. Infringement. Subject to your compliance with the terms of this EULA, EnvisionWare shall indemnify and hold harmless you and your officers, directors, employees and agents from and against all third party claims, to the extent such claim alleges that the Software (in each case as provided by EnvisionWare) infringes any copyright, U.S. patent right, trade secret right, or other intellectual property right provided, however, that you must comply with the following terms: EnvisionWare must have received from you: (i) prompt written notice of such claim (but in any event notice in sufficient time for EnvisionWare to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation by you. In the event that the Software is, or in EnvisionWare’s sole opinion is likely to be, enjoined or subject to a claim due to the type of infringement described in this Section 8, EnvisionWare, at its option and expense, may (a) replace the Software with functionally equivalent non-infringing Software or (b) obtain a license for your continued use of the Software, or, if the foregoing alternatives are not reasonably available to EnvisionWare (c) terminate this EULA and refund a pro rata amount, as determined by EnvisionWare, of the purchase price of the Software and Hardware. Notwithstanding the above, EnvisionWare shall have no liability for any infringement claim which: (i) pertains to any Software that has been altered or modified without EnvisionWare’s prior written approval; (ii) is based on use of the Software in conjunction with any item not provided by EnvisionWare, unless such use is shown to constitute the infringement when not used in conjunction with the item not provided by EnvisionWare; (iii) pertains to any unauthorized use of the Software; (iv) pertains to an unsupported release of the Software; or, (v) pertains to any Open Source Software or other third party code provided with the Software. THIS SECTION 8 SETS FORTH ENVISIONWARE’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
B. EnvisionWare shall indemnify, defend and hold you harmless from any losses (including, but not limited to, damage awards, reasonable attorneys’ fees and costs, cost of notification, remediation, and penalties) you incur due to any third party claim or action directly resulting from any Data Breach of your (or your patrons’) Personal Information to the extent that such losses are due to the direct act or omission of EnvisionWare or its representatives, agents, or contractors. This Section 8B shall apply only for so long as you are under a written annual support agreement with EnvisionWare (for which you have fully paid) for the Software and applies only to the Software covered by such support agreement. Furthermore, if you allow such support agreement to expire and subsequently purchase a support agreement, the obligations under Section 8B shall not apply to any third party claims arising from or during the period for which no support agreement was active.9. Limitation of Liability: SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE LIMITATION OR EXCLUSION BELOW MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL ENVISIONWARE OR ITS LICENSORS BE LIABLE TO YOU FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS (OTHER THAN THOSE CONTAINED IN THE SOFTWARE), INTERRUPTION OF BUSINESS OR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR HARDWARE, EVEN IF ENVISIONWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL ENVISIONWARE’S OR ITS LICENSORS’ TOTAL LIABILITY (A) FOR ANY PRODUCTS COVERED UNDER THIS EULA, EXCEED THE PURCHASE PRICE FOR THE SOFTWARE AND HARDWARE OR (B) FOR ANY PROFESSIONAL SERVICES, EXCEED THE FEES PAID BY YOU FOR THE PROFESSIONAL SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT WHICH DIRECTLY CAUSED THE DAMAGES ALLEGED. The disclaimers and limitations set forth above in this Section 9 will apply regardless of whether or not you accept the Software or Hardware or Professional Services. The parties agree that the limitations specified in this Section 9 will survive any expiration or termination of this EULA and apply even if any limited remedy specified in this EULA is found to have failed of its essential purpose.
10. U.S. Government Restricted Rights: RESTRICTED RIGHTS LEGEND. All EnvisionWare Software and documentation are commercial in nature. The Software and documentation are “Commercial Items”, as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1), and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 27.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable. EnvisionWare’s computer Software and software documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA. The manufacturer is EnvisionWare, Inc., 2855 Premiere Parkway, Suite A, Duluth, Georgia 30097-5201 USA.
11. Export Compliance: You acknowledge that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not, and shall not allow any third-party hired or under contract by you, to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.
12. Third-Party Code: The Software may contain or be provided with components subject to the terms and conditions of "open source" or freeware software licenses ("Open Source Software"). Licenses for open source are identified in Section 1. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this EULA with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
13. Professional Services: Upon request and agreement between the parties, EnvisionWare may provide consulting, training, installation, development, customization, report creation or other services (“Professional Services”). You may order Professional Services under a Statement of Work (“SOW”) describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before EnvisionWare shall commence work under such SOW. If the parties do not execute a separate SOW, the Services shall be provided as stated on the invoice. You will reimburse EnvisionWare for reasonable travel and lodging expenses as incurred. EnvisionWare shall be deemed the sole owner of any work product created and deliverables (including any documentation, code, Software, training materials or other work product) (collectively referred to as the “Deliverables”) delivered pursuant to the Professional Services, whether created solely by EnvisionWare or jointly with you or your contractors. Subject to your full payment of any and all fees pursuant to the applicable SOW, EnvisionWare grants to you the limited, nontransferable right to use any Deliverables delivered as part of the Professional Services solely in connection with your permitted use of the Software, subject to all the same terms and conditions as apply to your Software license (including the restrictions set forth in Section 1B), and subject to any additional terms and conditions provided with the Deliverables. EnvisionWare provides the Professional Services Warranty as stated in Section 4D above.
14. General: This EULA is the entire agreement between you and EnvisionWare relating to the license and use of the Software and Hardware, and relating to the Professional Services. This EULA supersedes all prior EnvisionWare end user license agreements for the Software and for any Professional Services. EnvisionWare may terminate this EULA upon your breach of any term contained herein. Upon termination, you shall cease use of, uninstall or render inoperable, and delete destroy all copies of the Software. The disclaimers of warranties and damages and limitations on liability shall survive termination. No provision of any purchase order or other business form employed by you will supersede the terms and conditions of this EULA, and any such document relating to this EULA shall be for administrative purposes only and shall have no legal effect. The parties to this EULA are independent contractors with respect to one another. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. This document may not be changed. In the event of any conflict with local law, the sole method for changes to EULA language are the incorporation of overriding text in an Agreement or a separate EULA Amendment.
15. Governing Law; Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction.
16. Software Escrow: At your request, EnvisionWare is willing to set up and maintain the Software with EnvisionWare’s independent U.S. escrow agent and make ongoing escrow deposits for significant updates. You would be responsible for additional fees for this service. Please contact EnvisionWare to for more information and pricing.
17. Insurance: EnvisionWare will, upon your request, provide you with a certificate of insurance showing that it carries or has in force each of the following types of insurance: general liability--$1,000,000 per occurrence and $1,000,000 general aggregate; professional liability--$1,000,000 per occurrence or claim and $1,000,000 aggregate; and cyber (aka electronic e/o)--$1,000,000 per occurrence or claim and $1,000,000 aggregate. If EnvisionWare does on-site installation or training, it will carry workers' compensation insurance that provides statutorily required workers' compensation coverage and employers' liability insurance with limits of $500,000 per accident, $500,000 disease - each employee, $500,000 disease - policy limit. EnvisionWare's insurance is primary. EnvisionWare is responsible for the payment of any deductibles or self-insured retentions. You will receive thirty (30) days' notice of cancellation.
18. Purchase in Australia: If you purchase Software, Hardware or services from EnvisionWare Pty Ltd or its partners, the laws of South Australia, Australia govern all warranty and service claims. EnvisionWare Pty Ltd is authorized to convey and effect all of the rights expressed in this EULA for its direct and indirect customers.
19. Contact Us: Should you have any questions concerning this EULA, or if you desire to contact EnvisionWare for any reason, please email email@example.com or write to: EnvisionWare, Inc., 2855 Premiere Parkway, Suite A, Duluth, Georgia 30097-5201 USA, unless you purchase from an Asia Pacific country in which case, please write EnvisionWare Pty Ltd, 258 Payneham Road, Payneham, SA 5070 Australia.
Revised May 2019 © 2002-2019 EnvisionWare, Inc. All Rights Reserved.
2. Each Verifone payment device used with the Point Solution is subject to an initial service term of 36 months (the “Initial Service Term”). Subject to the terms of the Customer Agreement, with respect to a particular Verifone payment device, Verifone shall provide the Point Solution to customer for a service term commencing (A) for Rental Devices (or any other payment devices shipped directly by Verifone), on the date such devices are shipped by Verifone, or (B) for any other payment devices, on the date on which such device is activated on the Payment Gateway, and in any case ending on the earliest of (1) the date on which Reseller removes such device from the Payment Gateway, (2) upon Verifone’s ceasing to provide the Point Solution for a payment device, which Verifone shall have the right to do on thirty days’ notice to customer following the Initial Service Term for such device, and (3) termination of customer’s right to use the Point Solution by Reseller due to breach by customer of the Customer Agreement (the “Service Term”). In addition, in the event Verifone’s separate agreement with Reseller terminates or Verifone ceases to offer the Point Solution to its customers generally, Verifone reserves the right to terminate the Service Terms for any or all Verifone payment devices. Upon the termination of the Service Term for a particular Verifone payment device, customer shall cease using the Point Solution for such payment device. In the event that a customer desires to end the Service Term for a payment device, the customer must request that Reseller remove the applicable device from the Payment Gateway on its behalf; Verifone will not be responsible for removing a payment device from the Payment Gateway provided that, notwithstanding customer’s earlier request, the Service Term will end on the day Reseller actually removes the device from the Payment Gateway.
3. Subject to the terms of this Agreement and customer’s payment of the applicable fees, Verifone hereby grants to customer a limited, non-exclusive, non-transferable, non-sub-licensable right and license, in the Covered Territory during the Service Term for each payment device, to access and use the Point Solution subscribed to hereunder solely for customer’s internal business purposes. Notwithstanding the foregoing, Reseller will be responsible for managing and monitoring customer’s payment devices on customer’s behalf, including with respect to the installation of payment applications and key loading, and customer will not be able to directly manage or monitor its payment devices via the Payment Gateway portal. Verifone may modify the Point Solution from time to time in its reasonable discretion, provided that such modifications shall not materially diminish the functionality thereof. If Reseller fails to pay Verifone for services rendered in accordance with its agreement with Verifone, Verifone reserves the right to withhold customer’s access to the Point Solution until such fees are paid in full, and Verifone shall not have any liability to customer for any amounts paid to Reseller and not received by Verifone for such services.
4. Customer shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer the Point Solution, or any component thereof, including without limitation the Software, to any third party. Customer shall not reverse engineer, decompile, disassemble, translate, modify, alter or create any derivative works based upon the Software, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Software, without the prior express written consent of Verifone. Customer shall not remove from the Rental Devices or the Software, or alter, any of trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Rental Devices or the Software, without the prior express written consent of Verifone.
5. Customer acknowledges that the Point Solution (including any related 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, are proprietary products of Verifone and that ownership of such shall remain with and inure to Verifone. Except for the license rights set forth in this clause 5, customer shall have no right, title or interest therein.
6. Customer grants VeriFone a limited, non-exclusive and irrevocable license during and after the term of this Agreement to follow customer’s activity inside of the Point Solution components and to use, share, and disseminate data from customer’s activity (including its transactions) on an aggregate and anonymous basis only (such data, “Derived Data”), including for purposes of data analytics and optimizing or otherwise enhancing its products and services. VeriFone will comply with all applicable laws with respect to any use, sharing and dissemination of Derived Data. This clause 6 shall survive any expiration or termination of this Agreement.
7. VERIFONE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE POINT SOLUTION, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. VERIFONE DOES NOT WARRANT THAT THE POINT SOLUTION, OR ANY COMPONENT THEREOF, WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE OPERATION OF THE POINT SOLUTION, OR ANY COMPONENT THEREOF, WILL BE UNINTERRUPTED OR ENTIRELY ERROR FREE. CUSTOMER ACKNOWLEDGES THAT UNDER NO CIRCUMSTANCES DOES VERIFONE REPRESENT OR WARRANT THAT ALL ERRORS IN ANY SOFTWARE CAN BE REMEDIED. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM VERIFONE OR FROM ANY OTHER THIRD PARTY ABOUT THE POINT SOLUTION SHALL CREATE ANY WARRANTY.
8. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE CUSTOMER AGREEMENT: EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) VERIFONE SHALL HAVE NO LIABILITY TO CUSTOMER 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, COST OF PROCUREMENT OF SUBSTITUTE SERVICES) RELATING IN ANY MANNER TO THE POINT SOLUTION (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 THIS AGREEMENT OR THE POINT SOLUTION, REGARDLESS OF THE FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY RECEIVED BY VERIFONE FROM RESELLER FOR CUSTOMER FOR THE POINT SOLUTION UNDER THE CUSTOMER AGREEMENT 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 THE POINT 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 NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE LIMITATIONS CONTAINED IN CLAUSE 7 ABOVE AND THIS CLAUSE 8 ARE A FUNDAMENTAL PART OF THE BASIS OF VERIFONE’S BARGAIN HEREUNDER, AND VERIFONE WOULD NOT PROVIDE THE POINT SOLUTION TO CUSTOMER ABSENT SUCH LIMITATIONS
9. Customer shall comply with all applicable laws, rules, and regulations in connection with this Agreement, including, but not limited to, export control laws and anti-corruption and anti-bribery laws, rules, and regulations. Customer agrees that if Verifone reasonably believes that customer is in breach of this clause 9, that alone shall be sufficient grounds for further action by Verifone, including, without limitation, cancellation of any orders or denial of future business, without any liability or obligation to customer. In addition, customer 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 customer or customer subsidiaries, owners, officers, directors, employees, partners, subcontractors, agents and representatives of the terms and conditions contained in this clause 9.
10. VERIFONE SHALL BE A THIRD-PARTY BENEFICIARY OF THIS AGREEMENT, WITH THE RIGHT TO ENFORCE THE TERMS HEREOF AGAINST CUSTOMER WITH RESPECT TO THE POINT SOLUTION.
11. In the case of any customer agreements that include Rental Devices:
A. Verifone Property. The Rental Devices shall remain the property of Verifone. Customer shall have no right, title or interest therein except as a lessee under this Agreement. Customer shall keep all Rental Devices free and clear from all liens, including any direct or indirect charge, encumbrance, lien, security interest, legal process or claim against the Rental Devices. Customer may not assign, hypothecate, sublet, sell, transfer, permit the sale of or part with possession of all or any of the Rental Devices or interest in the Customer Agreement, without Verifone’s prior written consent. If customer 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. Customer hereby waives any claim of trespass or right of action for damages by reason of such entry and repossession. In addition, customer shall pay to Verifone any actual additional expenses incurred by Verifone in collection efforts.
B. Upgrades. Customer may, commencing on the one year anniversary of the start of the Service Term for a Rental Device, upgrade to a different Rental Device (in which event customer may be subject to an increase in fees based on the new Rental Device subscription fee). For such upgrades, customer shall be required to commit to a new Initial Service Term for such Rental Device and shall be required to return the old Rental Device in accordance with clause (d) below.
C. Loss and Damage. Subject to Verifone’s obligation to provide the Services, customer assumes and shall bear the entire risk of loss or damage to the Rental Devices from any use whatsoever from the date of delivery of the Rental Devices to the customer site, until such Rental Devices are returned to Verifone. No loss or damage shall relieve customer from the obligation to make payments hereunder or to comply with any other obligation under the Customer Agreement. In the event of a loss of a Rental Device (but not damage), customer shall immediately notify Reseller thereof. With respect to any lost Rental Device, customer shall be obligated to pay Reseller the Non-Return Fee applicable to such Rental Device. Subject to Verifone’s receipt of such Non-Return Fee from Reseller, Verifone shall ship customer a new or refurbished replacement Rental Device. At all times payments for the Point Solution for such Rental Device shall continue in effect.
D. Return at End of Service Term. At the end of the Service Term for a Rental Device, customer shall return such Rental Device to Reseller or Verifone, as directed by Reseller. When returning a Rental Device to Verifone a Material Return Authorization number is required. If a Rental Device is not returned to Verifone within thirty (30) days of the end of its Service Term, customer shall be obligated to pay Reseller the Non-Return Fee for such Rental Device. If, upon return of the Rental Device, Verifone determines that the Rental Device requires repair that is not covered by the BPP or Repair Services (e.g., “Out of Scope” or “Limitations”), customer shall be required to pay Reseller for such services at Verifone’s standard fees.
THE FOLLOWING END USER LICENSE APPLIES TO PAYMENT EXPRESS ONLY WHERE PURCHASED BY CUSTOMERS IN CANADA and IRELAND ONLY. ENVISIONWARE HAS NO ABILITY TO REVISE THIS PAYMENT EXPRESS EULA.
PAYMENT EXPRESS, INC. END USER LICENSE AGREEMENT (EULA)
This PAYMENT EXPRESS END USER LICENSE AGREEMENT (this “Agreement”) is made as of the Effective Date (the date Customer signs this Agreement), by and between PAYMENT EXPRESS INC., a California corporation (“PX”), and the party set forth on the signature page hereto (“Customer”).
1. Definitions and Interpretation
1.1 Definitions: In this Agreement, unless the context indicates otherwise:
“Acquirer “ means a bank or any financial institution or a card issuer of financial or non-financial transactions which receives and transmits Transactions via Payment Express;
“Agreement “ means this Agreement, and any attachments that may be agreed between the parties, as each may be amended in writing from time to time;
“Business Day “ means any day of the week except Saturday, Sunday or a day on which banks are authorized or required to be closed in California;
“Chargeback “ means the procedure by which a sales record or other indicia of a card transaction (or disputed portion thereof) is denied or returned to Bank or the card issuer after it was entered into the appropriate settlement network for payment, in accordance with the rules of Visa, MasterCard or a similar card association (“Rules”), for failing to comply with the Rules, including, without limitation by reason of cardholder disputes, the liability for which is Customer’s responsibility and Customer agrees to pay.
“Confidential Information “ means, in relation to either party, any information:
a) relating to the terms of this Agreement;
b) relating directly or indirectly to research or development by, accounting for, or the marketing of, the business of that party or its suppliers or customers;
c) disclosed by that party to the other party on the express basis that such information is confidential; or
d) which might reasonably be expected by the other party to be confidential in nature;
“Customer “ means the customer specified on the first page of this Agreement and where applicable includes its employees, contractors and agents.
“Documentation “ means any user, training or system manuals for Payment Express (whether in printed or electronic form) which describes and provides guidance on the use of Payment Express (or any aspect of Payment Express);
“Goods “ means electronic devices produced by PX or sold by PX to Customer, Reseller, or a third party;
“Intellectual Property “ means registered and unregistered trade marks (including logos and trade files), domain names, copyright, patents, petty patents, utility models, registered and unregistered designs, circuit layouts, rights in computer software, databases and lists, Confidential Information, software (whether in object code or source code), and all other rights anywhere in the world resulting from intellectual activity;
“Payment Express “ means the Payment Express solution provided by PX for the transmission of data relating to Payment Express Supported Transactions between a Customer and an Acquirer, incorporating the Software and including access (via the internet) to the Payment Express Host;
“Payment Express Host “ means the PX host server known as Payment Express Host to which Customer may be connected using the Software and which is in turn linked to an Acquirer to enable Payment Express Supported Transactions to be processed in real time;
“Payment Express Supported Transactions “ means transactions from Customers:
a) accepting payment for goods and services by means of credit card, debit card, prepaid card, gift card or any other means of payment which PX agrees to support through Payment Express from time to time;
b) accepting loyalty cards, rewards cards, points cards, discount cards or club cards; or
c) providing services in relation to the sale and use of any of the cards referred to in paragraphs (a) and (b) above including the issue of such cards and the crediting or debiting of value to such cards;
“Payment Manager “ means Payment Express Merchant Portal which Customer is able to access by logging onto the PX Website with an assigned username and password;
“PCI Standards “ means the Payment Card Industry standards, requirements and guidelines issued by the Payment Card Industry Data Security Council from time to time including the Payment Card Industry Data Security Standard PIN Entry Device requirements and guidelines, and the Payment Application Data Security Standard;
“Permitted Use “ means the transmission to, and receipt from, an Acquirer of data relating to Payment Express Supported Transactions and expressly excludes, without limitation, use for the processing of transactions of, or for the benefit of, any person other than Customer;
“Reseller “ means the party with whom Customer has entered into an agreement for the purchase of a license to Payment Express;
“Reseller Agreement “ means the agreement between the Customer and the Reseller;
“PX “ means Payment Express Inc., a corporation duly formed in California with offices in Los Angeles, California.
PX Logo means the PX logo supplied (in electronic format) by PX to Customer (as may be updated from time to time by PX);
“PX Website “ means the website maintained by PX and accessible by Customer for viewing transactions, data entry, refunding, report generating and other features related to Transactions;
“Software “ means the software and other related PX products which:
a) form part of Payment Express; and
b) is owned or licensed by or developed by, or on behalf of, PX and supplied to Customer, including all upgrades, updates, alterations and modifications and other changes to such software by or on behalf of PX from time to time, but excluding any third party software and firmware forming part of, or supplied with, the Payment Express solution;
“Transaction “ means a message pair consisting of a message relating to a Payment Express Supported Transaction transmitted by Customer to an Acquirer through Payment Express and a response to that message from the Acquirer to Customer through Payment Express;
“Tokenized Data “ means data for which PX has substituted a sensitive data element with a non-sensitive equivalent that has no extrinsic or exploitable meaning or value.
1.2 Interpretation: In this Agreement, unless the context indicates otherwise:
a) the singular includes the plural and vice versa;
b) clause and other headings are for ease of reference only and will not affect this Agreement's interpretation;
c) the term “includes “ or “including “ (or any similar expression) is deemed to be followed by the words without limitation;
d) references to a “person “ include an individual, company, corporation, partnership, firm, joint venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity;
e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; and
f) in the event of any inconsistency between the terms this Agreement and the terms of the Reseller Agreement, the terms of this Agreement will control.
2.1 Term: This Agreement commences on the Effective Date and will continue until terminated under Clause 9 (the “Term”).
3. Customer Responsibilities
Customer represents and agrees that it:
3.1 Power and Authority: that it has full power and authority necessary to validly enter into and perform all its obligations under this Agreement
3.2 Requirements: to comply with the other party's reasonable security, confidentiality and operational requirements of which it has been given reasonable notice
3.3 Suitability: has made, and will continue to make, its own assessment of the suitability, adequacy, compatibility and appropriateness of Payment Express for its purposes;
3.4 Comply with Instructions: will comply with PX’s restrictions, instructions and Documentation in relation to the use of Payment Express, including those set out in this Agreement;
3.5 Use by Others: will ensure that only authorized persons use Payment Express and that Payment Express is used only for the Permitted Use and as expressly authorized under this Agreement;
3.6 Responsibility for Use: will accept all responsibility for the reliance on and use of Payment Express by Customer and its employees, contractors and agents;
3.7 Obtain Equipment Etc.: will obtain and maintain all equipment, software and services needed to enable it to receive and use Payment Express;
3.8 Accurate Customer Information: warrants that all information provided by Customer to PX in the Application Form is accurate and correct, and that Customer will notify PX in writing if such information changes or ceases to be accurate in any way;
3.9 Provide Sufficient Information: will ensure that sufficient information is given to PX to enable PX to comply with its obligations under this Agreement and that such information is timely, complete and accurate;
3.10 Personal Information: acknowledges that any personal information concerning Customer or its personnel which is provided to PX by or on behalf of Customer may be:
a) used by PX for the purpose of providing Payment Express, the Support Services and any other services to Customer; and
b) disclosed by PX to its affiliates and other services providers to enable PX to provide Payment Express, the Support Services and any other services to Customer;
3.11 Notify of Third Party Infringement: will immediately notify PX upon becoming aware of any third party infringing PX's Intellectual Property rights in any manner;
3.12 Responsible for Connecting to Payment Express Host: is responsible for all charges and costs associated with connecting to the Payment Express Host to operate Payment Express. PX will provide Customer with reasonable technical information and Software necessary to enable Customer to connect to the Payment Express Host; and
3.13 Comply with Law Generally: will comply with all relevant laws in its use of Payment Express and carrying out its obligations under this Agreement.
3.14 Requisite Review of Payline Portal: will review Customer’s Payline portal, established by PX, with due care on a daily basis for transaction errors. If an error is discovered by Customer, Customer will notify PX in writing within three (3) Business Days of the date such error occurs; provided that PX will have no liability or obligations of any kind with respect to errors that are not reported to PX within such three (3) Business Day period. In addition, Customer shall be required to review with due care its bank settlement files on a daily basis to ensure deposits occur without error. If an error is discovered by Customer in the course of such review, Customer will notify PX in writing within three (3) Business Days of the date of such error occurring; provided that PX will have no liability or obligations of any kind with respect to errors that are not reported to PX within such three (3) Business Day period. PX’s liability under this Section 3.14 (Requisite Review of Payline Portal) of the Agreement is governed by, and fully subject to, the terms of Section 9 of this Agreement.
3.15 Improperly Deposited Funds: will return funds that PX deposits in Customer’s bank account(s) that do not rightfully belong to Customer (“Improperly Deposited Funds”) without offset or delay. Customer will return all Improperly Deposited Funds to PX within five (5) calendar days of a written request to do so by PX. If Customer fails to comply with the terms of this Section, PX may immediately suspend services to Customer until Customer returns the Improperly Deposited Funds. Customer will be liable to PX for the Improperly Deposited Funds, and all costs (including legal costs on an attorney-client basis) incurred by PX in recovering the Improperly Deposited Funds.
3.16 Return of Old Goods: For Goods that Customer ceases using for the Permitted Use (“Unused Goods”), Customer will return such Unused Goods to PX within 30 calendar days. Unused Goods include, but are not limited to, Goods Customer has ceased using due to the Goods becoming obsolete, Goods that no longer operate, and Goods that are replaced per warranty. Customer will pay all shipping fees and costs associated with returning the Unused Goods to PX. Alternatively, instead of returning Unused Goods to PX, Customer may provide PX a secure destruction certificate evidencing that the Unused Goods were destroyed in compliance with the Security Standards within the same 30 calendar day period.
4. Disclaimer of Warranties
4.1 Limitations on Warranties: To the fullest extent permitted by law, except as expressly set out in this Agreement, PX disclaims and excludes all warranties, conditions, terms, representations or undertakings, whether express, implied, statutory or otherwise, including any condition or warranty of merchantability or fitness for a particular purpose. PX does not warrant that:
a) Payment Express, the Software or the Documentation will meet Customer's requirements; or
b) Payment Express, the Software and the Documentation will be uninterrupted or error free, or that all errors will be corrected.
Customer understands and acknowledges that an authorization obtained through Payment Express only confirms the availability of the cardholder’s credit at the time of the authorization. It does not warrant that the person presenting the card is the rightful cardholder, nor is it an unconditional promise, guarantee or representation by Bank, processor or PX that a transaction is or will be deemed valid and not subject to dispute, debit or chargeback.
4.2 No Requirement to Decrypt Tokenized Data: PX will at no time be obligated to decrypt and transmit Tokenized Data to Customer or any third party.
5. Intellectual Property
All Intellectual Property rights in Payment Express, the Software, the Documentation and any work or thing developed or created by or on behalf of PX under or in connection with this Agreement (such work or thing being Developed Works), are exclusively owned by PX (or PX's licensors or suppliers). Customer acknowledges that there is no transfer of title, Intellectual Property rights or ownership of:
a) Payment Express, the Software, the Documentation or any part thereof; or
b) any Developed Works; to Customer under this Agreement and Customer will not dispute PX's (or PX's licensors or suppliers) ownership of the property referred to in this clause 5.
Customer shall indemnify PX (and at PX’s sole discretion, defend PX) at all times against any liability, loss, damage or cost (including attorney’s fees) suffered or incurred by PX and all actions, proceedings, claims or demands made against PX as a result of any negligent act or omission or any breach of this Agreement by Customer, its personnel or agents.
7.1 Remedy: Subject to clauses 7.2 and 7.3, Customer's sole and exclusive remedy for breach of any warranty or of any of PX's obligations under this Agreement is (at PX's option) the supply or re- supply of Payment Express, the Goods, the Software, or the Documentation or the refund or waiver of Fees for the relevant part of Payment Express the Goods, the Software, or the Documentation which is the subject matter of, or directly related to, the breach.
7.2 Limitation: In no event will PX's total liability to Customer under this Agreement for any reason exceed the amount of $1,000.
7.3 Exclusion: In no event will PX be liable to Customer whether in contract, tort (including negligence) or otherwise in respect of any:
a) punitive, incidental, indirect or consequential damages, damages for loss of profits, business interruption, loss of data, loss of goodwill, arising out of, or in connection with, this Agreement, in each case even if such party has been advised of the possibility of such damages;
b) loss, damage, cost or expense suffered or incurred by Customer, to the extent this results from any act or omission by Customer; or any event described in part B, clause 14 (Force Majeure).
8. Commercial Purpose
It is expressly acknowledged and agreed by Customer that Payment Express, the Software and the Documentation are supplied to Customer for business and commercial purposes.
9.1 PX Termination Upon Notice: PX may terminate this Agreement without liability or obligation to Customer of any kind upon written notice to Customer if the Reseller Agreement expires or is terminated by Customer and/or Reseller for any reason.
9.2 PX Termination for Cause: PX may terminate this Agreement without liability or obligation to Customer of any kind at any time and with immediate effect by written notice to Customer:
a) if Customer breaches any of its obligations under this Agreement; or
b) if Customer fails to pay any amounts due to Reseller pursuant to the Reseller Agreement; or
c) goes into voluntary or involuntary bankruptcy or liquidation or has a receiver appointed.
9.3 Customer Termination: Customer may terminate this Agreement if PX breaches any of its obligations under this Agreement and fails to cure such breach within 10 Business Days after receipt of written notice of such breach.
9.4 Consequences: Termination of this Agreement will not affect the rights or obligations of the parties which have accrued prior to or accrue on termination or which by their nature are intended to survive termination (including clauses 3-7, 10, 13, and 14, together with those clauses which are incidental to, and required in order to give effect to, those clauses). Upon termination of this Agreement, Customer must immediately cease use of Payment Express, the Software and the Documentation.
10.1 Confidential Information: Each party will maintain as confidential at all times, and will not at any time, directly or indirectly:
a) disclose or permit to be disclosed to any person;
b) use for itself or to the detriment of the other party; any Confidential Information of the other party except as, and then only to the extent:
i) required by law;
ii) that the information is already or becomes public knowledge, otherwise than as a result of a breach, by the receiving party, of any provision of this Agreement;
iii) that the information is disclosed to the receiving party, without restriction, by a third party and without any breach of confidentiality by the third party;
iv) that the information is developed independently by the receiving party without reliance on any of the Confidential Information of the other party;
v) authorized in writing by the other party; or
vi) reasonably required by this Agreement (and, without limiting the effect of this clause, a party may disclose Confidential Information of the other party only to those of its officers, employees or professional advisers on a "need to know" basis, as is reasonably required for the implementation of this Agreement).
10.2 PX’s Intellectual Property: Customer acknowledges and agrees that the computer programs, computer software, specifications, data, images, designs, codes, and configurations contained in or utilized by the equipment and PX's network are proprietary and confidential to PX and protected under United States copyright law. Customer shall not copy, modify, adopt, translate, merge, reverse engineer, decompile, or disassemble, the equipment or Software, or create any derivative works based on the equipment, PX network or Software. Without limiting the effect of clause 10.1, Customer will treat information about PX's Intellectual Property as Confidential Information of PX.
11. Force Majeure
11.1 Customer acknowledges that PX relies on third-party providers in the delivery of its services, including, but not limited to, wireless data network providers, cellular radio service provided by third parties that is available only when within the operating range of cellular systems, and cellular service is subject to transmissions limitations and dropped or interrupted transmissions. Cellular service may be temporarily refused, limited, interrupted, or curtailed because of government regulations or orders, atmospheric and/or topographical conditions, and cellular system modifications, repairs, and upgrades. Customer agrees that PX shall not be liable for, and to hold PX harmless for any losses, damages, or business interruptions sustained as a result of interruptions caused by its wireless data network providers or any other third-party provider.
11.2 Neither party (the “Affected Party”) shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by
a) fire, flood, elements of nature or other acts of God;
b) any outbreak or escalation of hostilities, war, riots or civil disorders in any country;
c) any act or omission of the other party or any government authority;
d) any labor disputes (whether or not employees’ demands are reasonable or within the party’s power to satisfy); or
e) the nonperformance by a third party for any similar cause beyond the reasonable control of such party, including without limitation, failures or fluctuations in telecommunications or other equipment such as described in clause
11.3 In any such event, the Affected Party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable, provided that:
a) Notice: whenever the Affected Party becomes aware that such a result has occurred or is likely to occur, the Affected Party will, as soon as practicable, notify the other party by written notice accordingly;
b) Continued Performance: each party will continue to use commercially reasonable efforts to perform its obligations as required under this Agreement; and
c) No Deemed Acceptance of Extra Costs: neither party will be deemed to have accepted any liability to pay or share any extra costs which may be incurred by the other party in complying with this clause or otherwise resulting from such act, omission or failure; and
d) Charges: this clause 11.3 will not apply in respect of Customer's obligation to pay any charges or Fees payable under this Agreement.
12.1 Grant of License: PX grants to Customer a limited, non-exclusive, non-transferable, non-assignable, revocable license to use Payment Express, the Software and the Documentation for the Term of this Agreement solely for the Permitted Use. Any other use or dealings with Payment Express, the Software or the Documentation without the prior written consent of PX will be a material breach of this Agreement. Except to the extent specifically authorized under this Agreement, Customer must not sub-license, transfer, assign, rent or sell any of Payment Express, the Software or the Documentation or the right to use Payment Express, the Software or the Documentation.
12.2 PX Warranty: PX warrants that PX has the right and authority to grant to Customer the license set out in clause 12.1, in accordance with the terms of this Agreement.
13.1 Adequacy: Customer must satisfy itself as to the adequacy, appropriateness and compatibility of Payment Express for its requirements. Without limiting the foregoing, Customer acknowledges that it has not relied on any statements or representations on the part of PX as to performance or functionality, verbal or otherwise, except as expressly recorded in this Agreement.
13.2 PX Logo: If Customer uses a capture method for credit or debit card processing using a system which is not hosted by PX, Customer agrees to display the PX Logo in a readily visible position on the user interface of Customer’s system where the credit or debit card data is captured. The PX Logo must not be altered or used for any other purpose without the prior written consent of PX.
13.3 Compliance: If Customer is not compliant with one or more of the Security Standards, Customer must not capture or store any credit or debit card number or expiry date locally on Customer's or a non- compliant third party’s system.
13.4 No Right to Copy, Alter or Modify: Customer may make a reasonable number of copies of the Software for backup and disaster recovery purposes only. Except for such back-up copies, Customer must not, and must not permit any other person to, copy, reproduce, translate, adapt, vary, repair or modify all or any part of Payment Express, the Software or the Documentation by any means or in any form without PX's prior written consent.
13.5 Permitted Use: Customer may not:
a) use Payment Express, the Software or the Documentation for any purpose other than the Permitted Use; or
b) use the Software independently of the other components of Payment Express unless PX has given prior written consent to do so.
If this Agreement is terminated, Customer's right to use Payment Express, the Software and the Documentation will automatically terminate and Customer must immediately remove all copies of the Software from its system(s) and return Payment Express, the Software and the Documentation to PX
13.6 Reverse Engineering: Customer must not, and must not permit any other person to, reverse assemble or decompile the whole or any part of the Software.
13.7 No Third Party Use: Except as expressly provided for in this Agreement, the Customer must not provide, or otherwise make available, Payment Express, the Software or the Documentation or any component thereof in any form to any person (a “Third Party”) without the prior written consent of PX. If PX grants such consent, Customer must ensure that the Third Party complies with the provisions of clauses 5, 10, 12, and 13 (so far as those provisions relate to Customer) as if the Third Party were a party to this Agreement. Customer will be liable to PX for all acts or omissions of any Third Party in contravention of the provisions of clauses 5, 10, 12, and 13.
14.1 Entire Agreement: This Agreement including all schedules hereto records the entire arrangement between the parties relating to all matters dealt with in this Agreement and supersedes all previous arrangements, whether written, oral or both, relating to such matters.
14.2 Disputes: The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place. If the parties fail to negotiate a resolution to a dispute within a reasonable time (not exceeding 20 Business Days from formal notice of the dispute being given by one party to the other), either party may require that the dispute be submitted to mediation through JAMS, such mediation to take place in Los Angeles, California. A mediator shall be selected by mutual agreement or through procedures provided by JAMS. In such case:
a) the mediator will not be acting as an expert or as an arbitrator;
b) the mediator will determine the procedure and timetable for the mediation; and
c) the parties will share equally the cost of the mediation.
All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
Neither party may issue any legal proceedings (other than for urgent interlocutory relief) relating to any dispute, unless that party has first taken all reasonable steps to comply with the dispute resolution process above. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in this clause 14.2 above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
14.3 Waiver: No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either party shall in any way limit or waive the right of such party to subsequently enforce and compel strict compliance with the provisions of this Agreement.
14.4 Severance: Any provision in this Agreement which is or becomes unenforceable, illegal or invalid for any reason shall be severed and shall not affect the enforceability, legality, validity or application of any other provision which shall remain in full force and effect.
14.5 Assignment: PX may assign all or any of its rights and obligations under this Agreement to any person without Customer's consent. Customer may not transfer or assign any of its liabilities or rights under this Agreement to any other person without PX's prior written consent.
14.6 Amendment: Except as expressly provided for in this Agreement, no amendment to this Agreement will be valid unless recorded in writing and signed by a duly authorized senior representative of each party.
14.7 Governing Law and Jurisdiction: This Agreement is governed by the laws of California. Subject to the terms of clause 14.2, the parties submit to the jurisdiction of the courts of the State of California in respect of all matters relating to this Agreement.
14.8 Remedies: The rights, powers and remedies provided in this Agreement are not exclusive of any rights, powers or remedies provided by law.
14.9 Subcontracting: PX may appoint subcontractors to perform any of its obligations under this Agreement.
14.10 Notices: Any notice or other communication to be given under this Agreement must be in writing and must be served by one of the following means and in respect of each is deemed to have been served as described:
a) By personal delivery – when received by the party.
b) By post by registered or ordinary mail – on the second working day following the date of posting in the United States mail to the addressee’s registered office.
c) By email – when acknowledged by the party orally or by return email or otherwise in writing.
d) By facsimile – when sent to the correct facsimile number (with written transmission confirmation).
The addresses for the parties for Notices shall be as set out on Page 1 of this Agreement or such other address as either party specifies by notice in writing to the other given in accordance with this clause 14.10.
14.11 In the event of any conflict or inconsistency between this Agreement and the terms of a purchase order made by Customer to PX or a reseller of PX goods or services, this Agreement shall govern and control.