END USER LICENSE AGREEMENT
VERIFONE PAYMENT CONNECTOR FOR USE WITH MICROSOFT DYNAMICS PRODUCTS
THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “LICENSEE”) AND VERIFONE, INC. (“VERIFONE”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING (OR CONTINUING TO DOWNLOAD, INSTALL, OR USE) THE VERIFONE PAYMENT CONNECTOR FOR USE WITH MICROSOFT DYNAMICS PRODUCTS (THE “VERIFONE SOFTWARE”).
BY ACCEPTING THIS AGREEMENT, OR BY DOWNLOADING, INSTALLING, AND/OR USING (OR CONTINUING TO DOWNLOAD, INSTALL, OR USE) THE VERIFONE SOFTWARE, YOU REPRESENT THAT (1) YOU ARE OF THE LEGAL AGE TO FORM A BINDING CONTRACT, (2) YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT, (3) YOU CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT, AND (4) THIS AGREEMENT IS ENFORCEABLE AGAINST YOU IN ACCORDANCE WITH ITS TERMS. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF ANOTHER PERSON, COMPANY, OR OTHER ENTITY, (A) ALL REFERENCES HEREIN TO “YOU” AND/OR “LICENSEE” SHALL INCLUDE SUCH PERSON, COMPANY, OR OTHER ENTITY, (B) YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND SUCH PERSON, COMPANY, OR OTHER ENTITY, AND (C) SUCH PERSON, COMPANY, OR OTHER ENTITY SHALL BE BOUND HEREBY. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCEPT THIS AGREEMENT OR DOWNLOAD, INSTALL, AND/OR USE (OR CONTINUE TO DOWNLOAD, INSTALL, OR USE) THE VERIFONE SOFTWARE.
- GRANT OF LICENSE. Subject to the terms and conditions of this Agreement, VeriFone hereby grants to Licensee a limited, non-transferable, non-exclusive license to download and install the VeriFone Software on a personal computer or other workstation and use the VeriFone Software (in object (executable) code form) for the purpose of enabling the Verifone Payment Solution to interface with the Microsoft Dynamics software for which it was designed. The Microsoft Dynamics software is provided to You by Microsoft and not by Verifone. Verifone shall have no liability to You with respect to the Microsoft Dynamics software.
- OWNERSHIP. The VeriFone Software and all copies provided to you are licensed and not sold. As between you and Verifone, all title to the VeriFone Software resides and remains in VeriFone. The VeriFone Software is protected by U.S. copyright laws and international copyright treaties.
- OPEN SOURCE AND THIRD PARTY SOFTWARE. The Verifone Software may include third-party software. Any such third-party software (and any required license terms) are set forth on Schedule A or in the electronic documentation for the Verifone Software. Your use of any such third party software is governed by such license terms.
- RESTRICTIONS. Licensee shall not use or copy the VeriFone Software except for the purpose set forth in Section 1 above. Licensee may not copy the VeriFone Software onto any public network. Licensee shall have no right to obtain source code for the VeriFone Software by any means and shall not reverse engineer, decompile, disassemble, translate, modify, alter or change the VeriFone Software, or any part thereof, without the prior express written consent of VeriFone, except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of any third-party software that may be included in the Verifone Software. Licensee shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer the VeriFone Software. Licensee shall not obfuscate or remove from the VeriFone Software, or alter, any of VeriFone’s trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the VeriFone Software, without the prior express written consent of VeriFone. Licensee shall duplicate all such proprietary rights notices on all copies of the VeriFone Software permitted to be made hereunder.
- PURCHASE. Verifone is providing the Verifone Software to Licensee free of charge. For the avoidance of doubt, however, Licensee will need to enter into an agreement with Verifone or a Verifone reseller for the Verifone Payment Solution in order to use the Verifone Software for the purposes intended (the “Verifone Payment Solution Agreement”).
- UPDATES. From time to time, Verifone may make available updates to the Verifone Software on Verifone’s online software repository. Licensee is responsible for checking Verifone’s online software repository (or other Verifone sites that allow You to access the Verifone Software) for updates on a regular basis; Verifone is not responsible for notifying Licensee of the availability of any updates. All updates to the Verifone Software shall be subject to this Agreement as in effect as of the time You download such update; Verifone may require You to accept a new End User License Agreement pertaining to such update.
- DISCLAIMER OF WARRANTIES. THE VERIFONE SOFTWARE IS PROVIDED “AS IS”, WITH ALL FAULTS AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, QUIET ENJOYMENT AND TITLE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VERIFONE DOES NOT WARRANT, AND MAKES NO ASSURANCES, THAT THE OPERATION OF THE VERIFONE SOFTWARE WILL BE SECURE, UNINTERRUPTED OR ENTIRELY ERROR FREE AND HEREBY DISCLAIMS ALL LIABILITY ON ACCOUNT THEREOF. UNDER NO CIRCUMSTANCES DOES VERIFONE REPRESENT OR WARRANT THAT ALL PROGRAM ERRORS IN THE VERIFONE SOFTWARE CAN BE REMEDIED. Some jurisdictions do not permit the disclaimer of implied warranties, and, as such, some portion of the above limitation may not apply to Licensee. In such jurisdictions, Verifone’s liability is limited to the greatest extent permitted by law.
- LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AND EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) VERIFONE SHALL HAVE NO LIABILITY TO LICENSEE OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF SOFTWARE AND DATA) RELATING IN ANY MANNER TO THE SOFTWARE (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 UNDER THIS AGREEMENT AND WITH RESPECT TO THE SOFTWARE, REGARDLESS OF THE FORM OR NATURE OF THE CLAIM (EXCEPT AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES OF PERSONAL INJURY), SHALL BE LIMITED TO $100; AND (C) VERIFONE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE SOFTWARE. THE LIMITATIONS CONTAINED IN SECTION 7 ABOVE AND THIS SECTION 8 ARE A FUNDAMENTAL PART OF THE BASIS OF VERIFONE’S BARGAIN HEREUNDER, AND VERIFONE WOULD NOT LICENSE THE VERIFONE SOFTWARE TO LICENSEE ABSENT SUCH LIMITATIONS. Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to Licensee. In such jurisdictions, Verifone’s liability is limited to the greatest extent permitted by law.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE MAY BE BROUGHT BY LICENSEE AGAINST VERIFONE MORE THAN ONE (1) YEAR AFTER THE FIRST DAY THAT THE EVENT, ACT OR OMISSION GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED.
- TERMINATION. VeriFone may terminate this Agreement upon notice to Licensee if Licensee breaches any of the terms in this Agreement, upon termination of Licensee’s business or at such time as Licensee ceases using the Verifone Payment Solution. Licensee may terminate this Agreement upon notice to Verifone. Upon termination for any reason whatsoever, Licensee’s license rights shall terminate and Licensee shall immediately destroy or return to VeriFone the VeriFone Software, together with all copies in any form. Upon request of VeriFone, Licensee agrees to certify in writing that the VeriFone Software and all such copies have been destroyed or returned. Notwithstanding anything to the contrary contained in this Agreement, Sections 2, 3, 4, 7, 8, 9, 10, 11, 12 and 13 shall survive any expiration or termination of this Agreement.
- U.S. GOVERNMENT RESTRICTED RIGHTS. If the VeriFone Software is acquired by or on behalf of a unit or agency of the U.S. government, this provision applies. The Verifone Software was developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in this Agreement 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.
- COMPLIANCE WITH LAWS. Licensee shall comply with all applicable laws and regulations in connection with this Agreement, including, but not limited to, export control and anti-corruption and anti-bribery laws and regulations. In particular, but without limitation, the Verifone Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By downloading, installing or using the Verifone Software, You represent and warrant that You are not located in any such country or on any such list.
- GOVERNING LAW; DISPUTE RESOLUTION.
- Governing Law. This Agreement and the rights of the parties hereunder shall be governed by and construed and interpreted in accordance with the laws of the State of New York, exclusive of conflict or choice-of-law rules, and the parties hereby consent to the personal and exclusive jurisdiction and venue of the state and federal courts in the Southern District of New York. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, WHETHER IT RESULTS IN PROCEEDINGS IN ANY COURT IN ANY JURISDICTION OR IN ARBITRATION, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE OR ARBITRATOR WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. To the extent applicable, in the event of any lawsuit between the parties arising out of or related to this Agreement, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury. The rights and obligations of the parties under this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
- Arbitration of Disputes. PLEASE READ THIS SECTION CAREFULLY. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. Notwithstanding anything herein to the contrary, except with respect to enforcing claims for injunctive or equitable relief, any dispute, claim, or controversy arising out of or relating in any way to this Agreement or the interpretation, application, enforcement, breach, termination, or validity thereof (including any claim of inducement of this Agreement by fraud and including determination of the scope or applicability of this Agreement to arbitrate) or its subject matter (each, a “Dispute”), shall be determined by binding arbitration before one arbitrator. If either party arbitrates a Dispute, neither party, nor any other person, may pursue the Dispute in arbitration as a class action, class arbitration, private attorney general action or other representative action, nor may any such Dispute be pursued on Licensee’s or Verifone’s behalf in any litigation in any court. Claims regarding any Dispute and remedies sought as part of a class action, class arbitration, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. This means that the arbitration may not address disputes involving other persons with disputes similar to the Disputes between Licensee and Verifone. The arbitration shall be administered by JAMS conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those Rules. The arbitration shall be held in New York, New York, and it shall be conducted in the English language. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator shall have authority to award compensatory damages only and is not empowered to award any punitive, exemplary, or multiple damages, and the parties waive any right to recover any such damages. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding anything to the contrary in this Agreement, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ and experts’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ and experts’ fees reasonably incurred by the prevailing party in connection with the arbitration. Judgment on any award in arbitration may be entered in any court having jurisdiction. Notwithstanding the above, each party shall have recourse to any court of competent jurisdiction to enforce claims for injunctive and other equitable relief. Nothing herein shall preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- In the event of any conflict between Licensee’s Verifone Payment Solution Agreement and this Agreement with respect to governing law, venue and dispute resolution, the parties agree that the terms set forth in the Verifone Payment Solution Agreement shall control (and supersede) those set forth in this Agreement.
- GENERAL. This Agreement constitutes the entire agreement between VeriFone and Licensee and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, relating to the subject matter hereof. The official text of this Agreement shall be in English. In the event of any dispute concerning the interpretation or construction of this Agreement, reference shall be made only to this Agreement as written in English. The failure of a party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Licensee may not assign this Agreement, in whole or in part, without VeriFone’s prior written consent. Subject to the preceding sentence, this Agreement shall bind Licensee and its permitted successors and assigns. VeriFone may assign or delegate this Agreement, or any of its rights or obligations hereunder, in its sole discretion. If any provision of this Agreement 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 this Agreement shall remain in full force and effect. Notices made by Verifone to Licensee under this Agreement that affect Verifone customers generally (e.g., notices of amended Agreements, updated fees, etc.) may be posted on the Verifone Merchant Portal for the Verifone Payment Solution or may be provided upon Licensee’s access to the Verifone Software. Notices made by Verifone under this Agreement for Licensee or Licensee’s account specifically (e.g., notices of breach and/or suspension) will be provided to Licensee via the email address provided to Verifone when Licensee downloads the Verifone Software or in Licensee’s registration for the Verifone Payment Solution or in any updated email address Licensee provides to Verifone in accordance with standard account information update procedures Verifone may provide from time to time. It is Licensee’s responsibility to keep Licensee’s email address current and Licensee shall be deemed to have received any email sent to any such email address upon Verifone’s sending of the email, whether or not Licensee actually received the email. Verifone may also send notices to Licensee by overnight courier or certified mail to the address in Verifone’s customer database, or such other address as shall have been given to Verifone in writing. Licensee shall send notices to Verifone by overnight courier or certified mail at the following address (or such other address as shall have been given to Licensee in writing): VeriFone, Inc., 88 West Plumeria Drive, San Jose, CA 95134, Attn: General Counsel, with a copy to Verifone in care of its registered agent (currently, c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808). All mailed notices shall be deemed effective upon the earliest to occur of: (a) actual delivery; or (b) three days after mailing, if mailed by certified mail.
Rev Date: 1/21/16