These Standard Terms and Conditions (“Terms and Conditions”) together with the order form or other ordering document acceptable to Verifone to which these Terms and Conditions are attached or which references these Terms and Conditions (the “Order Form”) constitute a legal agreement between the applicable Verifone Contracting Party identified on the Order Form or otherwise identified by Verifone (“Verifone”) and the customer entity identified on the Order Form (“Merchant”, “you”, “your”, or any variation thereof). These Terms and Conditions describe the terms and conditions that apply to your purchase and use of the products and services subscribed to by you on the applicable Order Form (each, a “Product” or “Service”, as applicable). The Order Form is incorporated by reference into, and constitutes a part of, these Terms and Conditions. In the event of a conflict between the Order Form and these Terms and Conditions, these Terms and Conditions will govern unless Verifone has expressly agreed to such different terms by signing the applicable Order Form. Verifone shall not be bound by any Order Form until Verifone has accepted such order in writing or has shipped or otherwise delivered, activated, or invoiced you for the Products and/or Services ordered. Verifone and you are each referred to individually as a “Party” and collectively as the “Parties.”
1. GENERAL.
(a) Applicability. These Terms and Conditions provide general terms applicable to the Products and Services. The specific Products you are procuring and Services you are subscribing to will be as indicated on the applicable Order Form. Some of the Products and Services may be subject to supplemental terms, which may be presented on the website alongside these Terms and Conditions, attached to or referenced herein, or referenced in the applicable Order Form. Any such supplemental terms constitute a part of these Terms and Conditions. Certain Services may be subject to a minimum term, as specified on the applicable Order Form or set out in these Terms and Conditions. Termination or other deactivation of a Service prior to the end of the minimum term will be subject to a charge equal to the fees for the remainder of such minimum term.
(b) Standard Products and Services; Modification; Discontinuation. Except as otherwise agreed by Verifone in writing, each Product and Service will be Verifone’s standard, off-the-shelf Product or Service for the relevant Covered Territory, and no special or customized versions will be provided. Notwithstanding anything to the contrary herein, Verifone may modify any Product or Service from time to time in its discretion, and Verifone may discontinue Products or Services in its discretion, provided that, in the event of discontinuation of one of the Services you have subscribed, Verifone will endeavor to provide you with as much notice of such discontinuation as is commercially practicable under the circumstances.
(c) Account Information; Set-Up. For Verifone to provide the Products and Services, you will provide Verifone with such information and assistance as Verifone may reasonably request. Verifone will only provide Products and access to the Services after your account has been approved. You further agree to inform Verifone promptly of any changes to such information to keep such information true, accurate, current and complete at all times. Verifone will not have any liability for any breach or delay or failure to perform any obligation with respect to the Product and Services that results from erroneous or incomplete information provided to Verifone, your failure to secure your account information, or your failure to otherwise reasonably cooperate with Verifone. You agree that you are responsible for all activities that occur under your account and you will ensure that all activity conducted under your account complies with these Terms and Conditions and any other applicable agreements you have in place with Verifone. You may be required to complete applicable online training modules to be able to properly access and use Products and Services.
(d) Accuracy of Data Submitted to Verifone. You are at all times responsible for the accuracy of any data provided by you in connection with your use of the Products and Services, including cardholder data, sensitive authentication data, and other personal information of your consumers, such as their name, address, email address, and phone number. You release Verifone from any liability that may result from your providing Verifone erroneous data in connection with your use of the Products and Services, and will indemnify, defend, and hold harmless Verifone and its affiliates and their respective officers, directors, employees, agents, and representatives from any claims resulting from you providing inaccurate or erroneous data in connection with the Products and Services, including, without limitation, any claims that Verifone’s processing, storage, or transmittal of such inaccurate or erroneous data violates any applicable law, including laws pertaining to privacy and/or data protection.
(e) Covered Territory. Verifone will provide the Products and Services for use in the countries, regions, or territories identified on the applicable Order Form (the “Covered Territory”). You may only use the Products and Services (including any software included with the Products and Services) in the Covered Territory for which they are initially provided.
(f) Compliance with Law; Misuse of Products and Services. You must use the Products and Services in compliance with all applicable laws, rules, and regulations, as well as any rules imposed by any card network or payment scheme. You may not conduct, attempt to conduct, or solicit a third-party to conduct penetration testing or other vulnerability assessments of the Products or Services. You may not access or use, or attempt to access or use, the Products or Services in a manner intended to or with the effect of negatively impacting the performance of the Products or Services. Verifone may cancel your orders and disable your access to Services without notice should you violate these restrictions.
(g) Third-Party Services. Verifone may from time to time enable third-party services in connection with the Products and Services. You acknowledge that by subscribing to a third-party service, Verifone will transmit to the service provider such data as is requested by the service provider in connection with its service. You represent and warrant that you have provided all required notices and have obtained all necessary rights, permissions, and consents necessary for Verifone to lawfully transmit such data to the service provider and for you to grant any necessary permissions or authorization for such transmittal. YOU ACKNOWLEDGE AND AGREE THAT VERIFONE IS NOT THE PROVIDER OF ANY THIRD-PARTY SERVICE MADE AVAILABLE HEREUNDER AND VERIFONE’S ABILITY TO SUPPORT A THIRD-PARTY SERVICE IS SUBJECT TO SUPPORT BEING PROVIDED BY THE THIRD-PARTY SERVICE PROVIDER. 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 SERVICE AND THE ACTS OR OMISSIONS OF ANY THIRD-PARTY SERVICE PROVIDER, INCLUDING WITH RESPECT TO THE COLLECTION, HANDLING, AND PROCESSING OF DATA TRANSMITTED TO SUCH PROVIDER HEREUNDER.
(h) Feedback. In the event that you provide suggestions, comments or other feedback (“Feedback”) to Verifone with respect to the Products or Services, (i) all Feedback shall be deemed to be given voluntarily; (ii) Verifone shall be free to use, disclose, reproduce, distribute and otherwise commercialize all Feedback provided to it without obligation or restriction of any kind on account of intellectual property rights or otherwise; and (iii) you waive all rights to be compensated or seek compensation for such Feedback.
2. TERMS APPLICABLE TO VERIFONE GATEWAY SERVICES.
(a) Supported Acquirers. Verifone will provide you with information regarding Merchant Acquirers that are supported by Verifone for use with the respective Services in the applicable Covered Territory (each, a “Supported Acquirer”). The list of Supported Acquirers will change from time to time. “Merchant Acquirer” means, for any applicable Covered Territory, an acquiring bank or financial institution authorized by one or more payment scheme owners to enable the use of a payment method by accepting transactions from merchants on behalf of the scheme owners, routing the transaction to the applicable scheme owner (or issuing bank, as applicable) and collecting and settling the resulting funds to the applicable merchant.
(b) Designated Acquirers. You will notify Verifone of the Supported Acquirer(s) you desire to establish and maintain a merchant account with for use with the Services (each, a “Designated Acquirer”). You acknowledge and agree that a Designated Acquirer may decline to become or remain a Supported Acquirer and therefore Verifone cannot guarantee that the Services will be usable with such Designated Acquirer. Verifone will notify you as soon as is commercially practicable should it become aware that a Designated Acquirer will no longer be a Supported Acquirer.
(c) Acceptance by Designated Acquirer. Your use of particular Products and Services may be subject to the approval and/or on-going authorization of your Designated Acquirer. You are responsible for entering into an agreement with your Designated Acquirer and obtaining any necessary approvals and/or authorizations. Verifone will cooperate with you to validate that your use of the Products and Services meets the Designated Acquirer’s generic certification requirements.
(d) Payment Schemes; Compliance with Scheme Rules. Verifone will provide you information regarding the payment schemes that are supported for use with the Services (collectively, the “Schemes”). The specific Schemes supported for use with the Services are subject to change from time to time and will vary by region. Verifone may stop supporting a particular Scheme in its reasonable discretion, including for such reasons as (i) material changes in the terms imposed by the Scheme, (ii) malperformance by the relevant Scheme, (iii) material increases in the costs or risks of Verifone supporting the Scheme, and (iv) cessation is necessary for Verifone to comply with applicable law, rules, and regulations. Verifone will use commercially reasonable efforts to provide at least one month notice of any cessation of support for a Scheme; you acknowledge that the circumstances resulting in cessation of support may prevent Verifone from providing such notice. Your acceptance of transactions via a Scheme is subject to the by-laws, rules, operating regulations, waivers, and guidelines issued or promulgated by the applicable Scheme, as amended or supplemented from time to time by the applicable Scheme.
(e) Transaction Disputes. You are responsible for resolving any disputes between you and your customers involving or relating to the authorization of transactions processed via the Services and your products or services.
3. TERMS APPLICABLE TO DEVICES AND DEVICE-BASED SERVICES.
(a) Procuring Devices. Verifone offers payment devices (“Devices”) either for purchase or on a rental basis. Your Order Form may specify the model and number of payment devices you are purchasing or renting; alternatively, you may from time to time submit purchase orders referencing your Order Form and these Terms and Conditions for specified number of devices for use with the Services subscribed to hereunder. You should confirm with Verifone which Device models are supported for any specific Services to which you are subscribing.
(b) Device-Based Services. With respect to any Services that are provided for use on or with a Device, Verifone currently supports such Services on specific Verifone Device models, which Verifone designates from time to time in its discretion. You may only use the Services with supported Device models. Verifone reserves the right to cease supporting a Device model at any time. Once Verifone no longer supports a Device model, you may no longer activate such Devices on applicable Services and your continued use of the unsupported Device model will be at your own risk. Verifone will use commercially reasonable efforts to make available alternative supported Device models for use with the applicable Service for such time as Verifone continues offering such Service.
(c) Service Terms. With respect to Services that are quoted on a per-Device basis, Verifone will provide the Service for each such Device commencing the earlier of (i) Verifone’s shipment of such Device and (ii) activation of the Device for use with the applicable Service, and ending upon the earlier of (A) the date that Verifone has completed the deactivation process for such Device pursuant to a Device deactivation request made by Merchant in accordance with Verifone’s standard deactivation procedures, or (B) the termination of these Terms and Conditions or the applicable supplemental terms for such Service (the “Service Term”). Upon termination of the Service Term for such Device, you must cease using the applicable Services with such Device. You may request that Verifone reactivate Services on a Device; if reactivated by Verifone, the Service Term will recommence upon such reactivation and continue until terminated as set forth above. Notwithstanding anything to the contrary herein, if you continue to use any Services after termination of the Service Term, then without limiting any other remedies hereunder or available to it at law or in equity, you will be responsible for all fees associated with such Services for such use. Termination of a Service Term or other deactivation of any Product or Service prior to the end of any minimum Service Term shall be subject to a charge equal to all fees owed for the remainder of the minimum Service Term, which charge shall be due and payable in full thirty days from the date on which Verifone issues its invoice for such charge.
4. TERMINATION.
(a) Termination by Verifone. Verifone may elect to terminate these Terms and Conditions and the provisioning of Products and Services hereunder (in whole or in part) (i) upon thirty days' written notice at any time following any minimum term set forth in the applicable Order Form, (ii) upon thirty days' written notice in the event of a breach of these Terms and Conditions by you, which breach is not cured within such notice period, (iii) immediately upon written notice in the event of any termination of your business or in the event you are the subject of a dissolution, reorganization, insolvency, or bankruptcy action, or (iv) a circumstance exists that requires the termination of these Terms and Conditions to comply with applicable legal or regulatory requirements, in which case such termination may be effected immediately or within such period of time as the requirements permit, in each case, as determined by Verifone. Other termination rights may be provided elsewhere in these Terms and Conditions (including any supplement terms).
(b) Effect of Termination. Upon termination of these Terms and Conditions, (i) you will no longer have the right to place orders for any Products or Services, (ii) any revocable licenses granted hereunder shall be deemed revoked, (iii) all Service Terms shall terminate.
(c) Termination by Merchant. You may elect to terminate these Terms and Conditions (i) upon thirty days' written notice at any time following any minimum term set forth in the applicable Order Form, (ii) upon thirty days' written notice in the event of a breach of these Terms and Conditions by Verifone, which breach is not cured within such notice period, or (iii) immediately upon written notice in the event of any termination of Verifone’s business or in the event Verifone is the subject of a dissolution, reorganization, insolvency, or bankruptcy action.
(d) Survival. All provisions of these Terms and Conditions that give rise to a Party’s ongoing obligations will survive termination of these Terms and Conditions, including Section 1(f) (Compliance with Law; Misuse of Products and Services), Section 1(h) (Feedback), Section 2(d) (Payment Schemes; Compliance with Scheme Rules), this Section 4(c) (Survival), Section 5 (Fees; Payment) (until all fees are paid), Section 6(d) (Restrictions), Section 6(e) (Ownership), Section 8 (Representations, Warranties, and Covenants), Section 9 (Warranties), Section 10 (Limitations of Liability), Section 11 (Compliance), Section 12 (Confidentiality), Section 13 (Governing Law; Dispute Resolution) and Section 14 (Miscellaneous).
5. FEES; PAYMENT.
(a) Fees; Taxes. You agree to pay Verifone the fees for the Products and Services as set forth in the applicable Order Form. The method of payment and any payment terms will be as set forth in the applicable Order Form, and, if no payment terms are specified on the Order Form, payment shall be due as of the invoice date. If Verifone is invoicing you, Verifone shall be entitled to invoice you for the Products and any Device-related services (e.g., deployment, extended warranties) at the time of each shipment of Products to you, and Verifone shall be entitled to invoice you for software and all other Services in accordance with its standard invoice processes. If Verifone has granted you payment terms, Verifone, in its sole discretion, reserves the right to specify, and to change from time to time, your credit line and payment terms. All payments are to be made in the currency specified on the Order Form, unless otherwise agreed by Verifone. Verifone reserves the right to change the fees applicable to Products and Services from time to time, except that any such changes shall not apply to fees for Services already subscribed by you for a minimum term until after the expiration of such applicable minimum term. All fees are exclusive of applicable taxes, duties, contributions, charges and tariffs, including, without limitation, sales tax (collectively, “Taxes”), unless such Taxes are expressly identified by Verifone in writing as included in the applicable fee.
(b) Failure to Pay. If you fail to pay any fees when due hereunder: (i) Verifone shall be entitled to charge interest on the overdue payment from the date due until paid at the rate of 18.0% per annum, or the maximum rate permissible by law, whichever is less, and to invoice you for and/or debit from your Account (as applicable) such amounts in accordance with these Terms and Conditions; (ii) Verifone shall be entitled to withhold and/or disable your access to the Products and Services until all such amounts are paid and Verifone has confirmed the accuracy and completeness of your payment details; and (iii) Verifone reserves the right to pursue any and all legal remedies to collect the amounts owed by you, including any attorneys’ fees. Verifone shall be entitled to invoice you for and/or debit your Account (as applicable) any actual additional expenses incurred by Verifone in collection efforts, including any attorneys’ fees.
6. LICENSES; RESTRICTIONS.
(a) License to Products and Provision of Services. Any licenses with respect to a Product (including any software Product) are limited solely to such licenses as are expressly set forth in and in the applicable supplemental terms for such Product and are subject to the payment of the corresponding fees. Subject to these Terms and Conditions and your payment of the applicable fees, Verifone will provide the Services on an Order Form.
(b) License to Device Software. Verifone may install and include on Devices certain terminal operating systems, firmware, encryption applications, application programming interfaces, libraries, or other software components (collectively, “Device Software”). Unless such Device Software is licensed to you pursuant to separate Supplemental Terms, Verifone grants you a limited, non-exclusive, non-sublicensable, non-transferable license to use such Device Software (in object code form only) and any applicable documentation, on the Device on which it was installed by Verifone. Device Software licenses cannot be transferred from one Device to another Device; the license granted herein is Device-specific (tied to the specific Device serial number).
(c) Limited Device Software Warranty. Verifone warrants that, for a period of sixty days from the date Verifone first delivers Device Software to you (the “Device Software Warranty Period”), such Device Software will substantially conform to the documentation specified by Verifone for such Device Software. During the Device Software Warranty Period, Verifone will use commercially reasonable efforts to correct any non-conformities. Any correction of a non-conformity will not extend the Device Software Warranty Period. Your sole and exclusive remedy under this warranty will be limited to correction of the nonconformity, and Verifone shall not be obligated to refund the license price nor pay for any labor or other costs associated with the removal of defective software components or the reinstallation of software components. No warranty coverage will be provided for Device Software if (i) you fail to notify Verifone of the nonconformity within seven days after such nonconformity has become apparent or (ii) the Device Software has been modified by any person not authorized by Verifone, damaged or misused by you, or was improperly installed by you or your designees. You must cooperate fully with Verifone in carrying out diagnostic and test routines as Verifone may require.
(d) Restrictions. You shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer the Products or Services, or any component thereof (including, without limitation, any software made available as part of the Products or Services), to any third party. You 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 any software licensed hereunder. You shall not remove or alter any Verifone trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Products or Services.
(e) Ownership. You acknowledge that the Products and Services (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 (the “Proprietary Materials”), are proprietary products of Verifone and that ownership of such shall remain with and inure to Verifone. Except for the license rights expressly granted pursuant to any applicable supplemental terms, you shall have no right, title, or interest therein. Verifone reserves all rights in the Proprietary Materials and any other Verifone intellectual property not expressly granted herein.
(f) Government End Users. All software and Services were developed entirely at private expense and are 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.
7. VERIFONE CLOUD SERVICES; DATA SECURITY AND PRIVACY; MERCHANT IT ENVIRONMENT.
(a) Verifone’s IT Environment. Certain Services are provided by Verifone as cloud services involving the storage, processing, or transmittal of data through Verifone’s IT Environment (a “Verifone Cloud Service”). “Verifone's IT Environment” means the information technology network and related hardware and software environment directly controlled and maintained by Verifone to store, process, and/or transmit data electronically in the course of Verifone’s provisioning of the applicable Service, and expressly excludes devices located in a customer’s physical and/or information technology environment and any software running on such devices. Verifone’s IT Environment does not include processor, Internet, network, or POS systems (including non-Verifone circuits, VPNs or data transmission architecture, wherever located), or other systems outside of Verifone’s control. You acknowledge and hereby consent to Verifone's cross-border data transfers in connection with the performance of its obligations under these Terms and Conditions.
(b) Maintenance. Verifone conducts routine maintenance to the Verifone Cloud Services. Maintenance is generally scheduled during time periods when overall end user online activity is more limited. Verifone reserves the right to shut down the Verifone Cloud Services with no notice should emergency maintenance become necessary. Verifone reserves the right to remove any user from a Verifone Cloud Service should Verifone determine, in its sole discretion, that a particular Verifone Cloud Service has been compromised or in any way used inappropriately. In extreme cases, where a user has compromised the security of a Verifone Cloud Service or otherwise acted in a malicious or damaging manner, removal may occur immediately without prior notification.
(c) PCI DSS Warranty. Certain Services (or components of a Service) involve the processing, storage, or transmittal of cardholder data (as defined by the Payment Card Industry Security Standard Council (“PCI SSC”), which requires that such component be deemed compliant with Payment Card Industry Data Security Standards (“PCI DSS”). With respect to those Services (or components) that are in-scope for PCI DSS, Verifone warrants that such component of the Services has been deemed compliant with PCI DSS by a PCI Qualified Security Assessor (a “PCI QSA”). In the event that PCI DSS requirements applicable to a Service change, Verifone will use commercially reasonable efforts to meet all new applicable PCI DSS requirements.
(d) Security Measures. Verifone will implement and maintain no less than commercially reasonable administrative, physical, and technical safeguards for Verifone’s IT Environment to prevent and detect unauthorized access, destruction, use, modification, or disclosure of any customer data provided by you in connection with the Services. These safeguards will include, without limitation: (i) adequate physical security of all premises; (ii) reasonable precautions with respect to the employment of and access given to Verifone personnel; (iii) an appropriate network security program with reasonable access and data integrity controls, testing and auditing of all controls, and appropriate corrective action and incident response plans; and (iv) industry standard practices for virus and malware protection. However, no security system is impenetrable and Verifone cannot guarantee that unauthorized parties will never be able to defeat its security measures or misuse any data in its possession. You provide data to Verifone with the understanding that any security measures Verifone provides may not be appropriate or adequate for your business.
(e) Merchant IT Environment. You are responsible for separately procuring all information technology infrastructure necessary to access and use the Products and Services, including but not limited to the infrastructure necessary to host and operate your websites, mobile applications, order entry systems, and other of your internal business environments (collectively, the “Merchant IT Environment”). Furthermore, you are responsible for the security and integrity of the Merchant IT Environment, including (i) obtaining necessary PCI DSS certifications, (ii) on-going compliance with applicable PCI DSS rules, including as reflected in the Visa Cardholder Information Security Program (“CISP”), the MasterCard Site Data Protection Program (“SDP”), American Express Data Security Operating Policy (“DSOP”) and Discover Network’s Information and Security Compliance (“DISC”), and (iii) maintaining the security of all data, including cardholder data and other personal data of your customers while processed, stored, or transmitted via the Merchant IT Environment or while otherwise in your possession or control. Verifone shall have no obligation to ensure that the Products or Services operate in conjunction with the Merchant IT Environment, including without limitation its specific equipment, software, services, or other products or systems, and you shall be responsible for all costs you incur in connection with any modifications you elect to make to your own equipment, software, services or other products or systems.
(f) Collection of Technical Data. You acknowledge and agree that Verifone may collect and use technical and usage data and other information in connection with your use of the Products and Services, including information about payment transactions, which data is gathered by Verifone for data analytics and optimization, to facilitate the provision of Products and Services, to provide updates, support and other services related to the relevant Products and Services, to improve Verifone’s Products and Services, and for other lawful purposes. This Section shall survive any expiration or termination of these Terms and Conditions.
(g) Store and Forward. Certain Products and Services offer functionality that enables transaction data to be stored in a Device in the event the Device’s connection to the processor host is lost, and to forward the transaction data upon reconnection with the host (commonly known as “Store and Forward” or “SAF” functionality). You may, in your discretion, enable SAF functionality and set available parameters for number and value of transactions that may be stored. In the event that SAF transaction data stored in a Device is not forwarded to the host for processing as desired, you may request that Verifone attempt to recover the SAF transactions. Upon such a request, Verifone may, in its discretion, use commercially reasonable efforts to recover any SAF transaction data stored in a Device, provided that Verifone does not represent or warrant that recovery (in whole or in part) is possible or will be successful. Any SAF recovery efforts by Verifone will be chargeable on a time and material basis or at such other prices as may be quoted by Verifone from time to time. Verifone disclaims, and you release Verifone from, any liability resulting from your election to enable SAF functionality or Verifone’s SAF recovery efforts.
8. REPRESENTATIONS, WARRANTIES, AND COVENANTS.
You represent, warrant, and covenant as follows:
(a) Due Organization. You are an independent entity duly organized, validly existing, and in good standing under the laws of your jurisdiction of organization and are properly registered to do business in all jurisdictions in which you carry on business. If you are procuring Products or Services as a sole proprietor, please keep in mind that the law and these Terms and Conditions consider you and your business to be legally one and the same. You are personally responsible and liable for your obligations with respect to the Products and Services, payment of fees and any other amounts you owe under these Terms and Conditions, and for all other obligations to Verifone and to your customers. You risk personal financial loss if you fail to pay any amounts owed.
(b) Approvals. You have all licenses, regulatory approvals, permits, and powers legally required to conduct your business in each jurisdiction in which you conduct business.
(c) Authority. You have the authority to execute and perform the obligations required by these Terms and Conditions, including all power, authority, and legal right to execute, deliver, and to carry out the transactions and obligations contemplated hereby.
(d) No Agency. You are entering into these Terms and Conditions in your own capacity for your own account and are not acting as a nominee or agent of any other third party.
(e) Validity. These Terms and Conditions constitute a valid and binding obligation, enforceable in accordance with their terms. Except as otherwise stated in these Terms and Conditions, you are not legally or contractually required to obtain any approval or consent from any person or government department as a condition to performing your obligations hereunder.
(f) No Conflicts. The acceptance and consummation of these Terms and Conditions, will not (i) conflict with your certificate of incorporation or by-laws or any other organizational document, (ii) breach any obligations under any contract to which you are a party, or (iii) violate applicable law.
(g) Litigation. There is no litigation, proceeding, or investigation of any nature pending or, to your knowledge, threatened against you or affecting you or any of your affiliates, which would reasonably be expected to have a material adverse effect on your ability to perform your obligations under these Terms and Conditions.
(h) Accuracy; Changes. You are responsible for ensuring that all the information disclosed to Verifone is true, accurate, and complete. You will promptly inform Verifone of any action or event of which you become aware that has the effect of making inaccurate any of the representations or warranties set forth in these Terms and Conditions.
9. WARRANTIES. ANY WARRANTIES WITH RESPECT TO DEVICES ARE SET FORTH IN THE SUPPLEMENTAL TERMS. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN AND IN THE SUPPLEMENTAL TERMS, ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS.” VERIFONE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, 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 PRODUCTS OR SERVICES, OR ANY COMPONENT THEREOF, WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS OR SERVICES, OR ANY COMPONENT THEREOF, WILL BE UNINTERRUPTED OR ENTIRELY ERROR FREE. YOU ACKNOWLEDGE THAT UNDER NO CIRCUMSTANCES DOES VERIFONE REPRESENT OR WARRANT THAT ALL ERRORS IN ANY SOFTWARE CAN BE REMEDIED. VERIFONE MAY, FROM TIME TO TIME, PROVIDE ITS ROADMAP OR PROJECTED IMPLEMENTATIONS FOR THE PRODUCTS OR SERVICES; SUCH INFORMATION IS NOT BINDING ON VERIFONE AND YOU SHOULD NOT RELY ON SUCH INFORMATION. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM VERIFONE OR FROM ANY OTHER PARTY ABOUT THE PRODUCTS OR SERVICES SHALL CREATE ANY WARRANTY. NOTHING IN THESE TERMS AND CONDITIONS OPERATES TO EXCLUDE, RESTRICT, OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY, OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER LAW WHERE TO DO SO WOULD CONTRAVENE THAT LAW OR CAUSE ANY TERM OF THESE TERMS AND CONDITIONS TO BE VOID.
10. LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND CONDITIONS, EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) VERIFONE SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR (I) ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (II) LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS, REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR TRANSACTIONS, CHARGE-BACKS, EQUIPMENT PURCHASED OR ACQUIRED BY YOU OR YOUR SUBCONTRACTORS OR AGENTS TO EFFECTUATE THESE TERMS AND CONDITIONS, OR COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, REGARDLESS OF WHETHER SUCH LOSSES ARE DIRECT LOSSES OR INDIRECT LOSSES, IN EACH CASE (I) AND (II) RELATING IN ANY MANNER TO THESE TERMS AND CONDITIONS OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER AND WHETHER ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT OR OTHERWISE, EVEN IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGE; (B) IN ANY CASE, VERIFONE’S ENTIRE LIABILITY RELATING IN ANY MANNER TO THESE TERMS AND CONDITIONS AND ANY PRODUCTS AND SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED TO YOUR DIRECT AND DOCUMENTED DAMAGES, AND WHICH LIABILITY WILL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY PAID BY YOU FOR THE PRODUCTS AND SERVICES DURING THE SIX MONTHS PRIOR TO THE CLAIM ARISING (WHICH SHALL NOT INCLUDE ANY FEES PAID BY YOU WITH RESPECT TO ANY THIRD-PARTY SERVICES); AND (C) VERIFONE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THESE TERMS AND CONDITIONS OR THE PRODUCTS AND SERVICES PROVIDED HEREUNDER. THE LIMITATIONS ON VERIFONE’S LIABILITY SET FORTH IN CLAUSES “(B)” AND “(C)” OF THIS SECTION SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY VERIFONE’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE DISCLAIMERS CONTAINED IN SECTION 9 ABOVE AND THE LIMITATIONS SET FORTH IN THIS SECTION ARE A FUNDAMENTAL PART OF THE BASIS OF VERIFONE’S BARGAIN HEREUNDER, AND VERIFONE WOULD NOT PROVIDE THE PRODUCTS AND SERVICES TO YOU ABSENT SUCH LIMITATIONS.
11. COMPLIANCE. You are responsible for complying with all applicable laws, rules, and regulations in connection with these Terms and Conditions, the operation of your business, and your use of the Products and Services, including export control laws, the Fair and Accurate Credit Transactions Act (FACTA) (including responsibility for any information printed on receipts), the Americans with Disabilities Act, and all applicable anti-corruption and anti-bribery laws, rules, and regulations. You acknowledge that Verifone does not assume responsibility for your compliance with laws applicable to your operation of your business or your business environment. You agree that if Verifone reasonably believes that you are in breach of this Section, that alone shall be sufficient grounds for further action by Verifone, including, without limitation, cancellation of any provision of Products or Services or denial of future business, without any liability or obligation to you. In addition, you hereby agree to indemnify Verifone and its affiliates, directors, officers and employees for all costs, expenses, damages, claims, charges, penalties, fines and other losses that arise in connection with any breach by you or your subsidiaries, owners, officers, directors, employees, partners, subcontractors, agents, or representatives, of this Section.
12. CONFIDENTIALITY.
(a) Confidential Information. “Confidential Information” means any and all confidential or proprietary information disclosed by one Party to the other Party, to the extent related to these Terms and Conditions, the Products and Services made available hereunder, or other products, services or information offered or made available by Verifone from time to time, whether such information is in oral, written, graphic or electronic form; provided that (i) if such information is in writing or other tangible form, it is clearly marked as “proprietary” or “confidential” when disclosed to the receiving Party, (ii) if such information is not in tangible form, it is identified as “proprietary” or “confidential” when disclosed, or (iii) such information should be reasonably understood by the receiving Party to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) the disclosing Party expressly agrees in writing is free of any nondisclosure obligations; (ii) at the time of disclosure to the receiving Party was known to the receiving Party (as evidenced by documentation in the receiving Party’s possession) free of any nondisclosure obligations; (iii) is independently developed by the receiving Party (as evidenced by documentation in the receiving Party’s possession); (iv) is lawfully received by the receiving Party, free of any nondisclosure obligations, from a third party having the right to so furnish such information; or (v) is or becomes generally available to the public without any breach of these Terms and Conditions or unauthorized disclosure by the receiving Party. Notwithstanding anything to the contrary herein, any pricing or other terms contained in an Order Form shall be deemed to be the Confidential Information of Verifone.
(b) Nondisclosure and Nonuse. Each Party receiving Confidential Information shall (i) disclose such Confidential Information to only those directors, officers, employees, subcontractors, and agents of such Party (A) whose duties justify their need to know such information and (B) who have been clearly informed of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information; and (ii) use such Confidential Information only for the purposes set forth in these Terms and Conditions. Each Party receiving Confidential Information shall treat such information as strictly confidential, and shall use the same degree of care to prevent disclosure of such information as such Party uses with respect to its own confidential and proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances. Notwithstanding the foregoing, each Party may disclose Confidential Information to the extent necessary pursuant to applicable federal, state or local law, regulation, court order, or other legal process, provided the receiving Party has given the disclosing Party prior written notice of such required disclosure and, to the extent reasonably possible, has given the disclosing Party an opportunity to contest such required disclosure at the disclosing Party’s expense. Additionally, either Party may retain archival and backup copies of the other Party’s Confidential information as may be required by applicable law, pursuant to the receiving Party’s document retention policies, or where removal of such Confidential Information is unduly burdensome.
(c) Confidentiality Period. Each Party’s obligations under this Section shall continue (i) with respect to Confidential Information that meets the definition of a trade secret under applicable law, until such time as such Confidential Information is no longer a trade secret (other than as a result of a breach of these Terms and Conditions), and (ii) with respect to all other Confidential Information, until five years after expiration or termination of these Terms and Conditions.
(d) Termination. Upon termination or expiration of these Terms and Conditions, each Party shall (i) promptly return all Confidential Information received from the disclosing Party, including all copies thereof and materials derived therefrom, or (ii) at its election, destroy the Confidential Information and, if requested by the disclosing Party, certify in writing that it has complied with the provisions of this clause (ii). Notwithstanding anything to the contrary herein, the receiving Party may retain such Confidential Information or copies thereof (subject to the confidentiality obligations set forth in this Section) to the extent necessary to comply with applicable law and neither Party is required to alter its information systems, data retention or backup policies or procedures to comply with this Section.
13. GOVERNING LAW; DISPUTE RESOLUTION.
(a) 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 Governing Laws, without reference to conflict or choice-of-law rules that may result in the application of the substantive law of any other jurisdictions. 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. Refer to Supplemental Terms – Governing Law and Jurisdiction where the applicable Governing Laws and jurisdictional terms are specified.
(b) Jury Trial Waiver. 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.
(c) Class Action Waiver. YOU MAY NOT PURSUE ANY CLAIM AGAINST VERIFONE AS A CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION. CLAIMS REGARDING ANY DISPUTE AND REMEDIES SOUGHT AS PART OF A CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE ACTION MUST BE BROUGHT ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS.
(d) Disputes. 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), or its subject matter (collectively, “Disputes”) will be adjudicated in the Governing Courts, and you consent to exclusive jurisdiction and venue in the Governing Courts, subject to the additional provisions set forth in Supplemental Terms – Governing Law and Jurisdiction. PLEASE READ THE SUPPLEMENTAL TERMS – GOVERNING LAW AND JURISDICTION CAREFULLY. SUCH TERMS INCLUDE AN AGREEMENT TO ARBITRATE IN CERTAIN CIRCUMSTANCES. ARBITRATION REPLACES THE RIGHT TO GO TO COURT. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY.
14. MISCELLANEOUS.
(a) Entire Agreement; Severability. These Terms and Conditions (inclusive of the applicable Order Form) constitute the entire agreement between Verifone and you and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, relating to the subject matter hereof and thereof. In the event of any conflict between these Terms and Conditions (inclusive of the applicable Order Form) and those set forth on any other purchase order or other ordering document submitted by you to Verifone, the terms of these Terms and Conditions shall control. Except as expressly agreed in writing by Verifone, any additional terms on your purchase orders or other ordering document shall be void. If any provision of these Terms and Conditions (inclusive of the applicable Order Form) 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.
(b) Right to Amend these Terms. Verifone reserves the right to change or add to these Terms and Conditions at any time. Any changes or additions will only apply to your purchase of Products or use of the Services prospectively. Verifone will provide notice of any changes or additions through the applicable Verifone portal, via email, or by other means reasonably designed to give you notice of such changes or additions. Any changes or additions will only be effective thirty days after such notice has first been published.
(c) Assignment. You may not assign these Terms and Conditions, in whole or in part, without Verifone’s prior written consent. Subject to the preceding sentence, these Terms and Conditions shall bind you and your permitted successors and assigns. Verifone may assign these Terms and Conditions, or any of its rights or obligations hereunder, in its sole discretion.
(d) Independent Contractor. In its performance of these Terms and Conditions, Verifone shall act in the capacity of an independent contractor and not as your employee or agent. Neither Party nor its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of the other Party, nor do they have any authority to bind the other Party by contract or otherwise to any obligation. Neither Party will represent to the contrary, expressly, implicitly, by appearance or otherwise.
(e) Publicity. Verifone may identify you as a customer of Verifone on its website and other marketing materials and, in connection with these activities, Verifone may use your name and logo in accordance with any brand usage guidelines provided in writing to Verifone. Verifone may issue press releases, either jointly or independently, relating to the matters contemplated by these Terms and Conditions, provided that you have approved the form and substance of such press release in advance (such approval not to be unreasonably withheld, conditioned, or delayed). Except as permitted in this Section 14(e) or with respect to disclosures and regulatory filings required under applicable law, neither Party shall make any public announcements relating to the matters contemplated by these Terms and Conditions without the prior written consent of the other Party.
(f) Force Majeure. Verifone shall not be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, non-performance of its vendors or suppliers, acts of God, pandemics, epidemics, shortages of fuel, energy, labor or materials, transportation delays, electrical or communication infrastructure failures or disturbances, fires, floods, labor disturbances, riots or wars (“Force Majeure Events”).
(g) No Waiver. Failure by either party to enforce any provision of these Terms and Conditions will not be deemed a waiver of future enforcement of that or any other provision.
(h) Construction. The official text of these Terms and Conditions shall be in English. Any non-English translation of these Terms and Conditions is for reference only, and in the event of any dispute concerning the interpretation or construction of these Terms and Conditions, reference shall be made only to these Terms and Conditions as written in English. Each Party acknowledges and agrees that any interpretation of these Terms and Conditions may not be construed against a Party by virtue of that Party having drafted the provisions. The headings and captions contained herein are for convenience of reference only and shall not affect the interpretation or construction of these Terms and Conditions.
(i) Notices. Notices made by Verifone to you under these Terms and Conditions may be (i) posted on the applicable Verifone portal or may be provided upon access to Services, (ii) via email at the address provided to Verifone in connection with your registration, or (iii) by overnight courier or certified mail to the address provided by you in connection with your registration. It is your responsibility to keep your contact information (including your email address and notices address) current. Verifone will not be responsible to you if you fail to receive any notices due to inaccurate contact information or your failure to update such information with Verifone. You must send notices to Verifone at VeriFone, Inc., c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808, or such other address as Verifone may provide you from time to time for such purposes. All mailed notices shall be deemed effective upon the earliest to occur of: (a) actual delivery; or (b) three days after mailing, addressed and postage prepaid, return receipt requested.
