END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is a
binding legal contract between you (either an individual or a legal entity) and
Apriva LLC, an Arizona Limited Liability Company (“Apriva”). By installing,
accessing or using the software and any associated documentation and
Enhancements (as defined below) provided with this Agreement (collectively, the
“Application”) you will be bound by the terms of this Agreement. If you do not
agree to the terms of this Agreement, Apriva is not willing to license any
right to use or access the Application to you. In such event, you may not
install, access, use or copy the Application.
By agreeing to this Agreement, you also are acknowledging that you have
completed a Merchant Processing Application and received and read to your satisfaction the Program Guide
Terms and Conditions (“Program Guide”) between you and the entities referenced in said Program Guide which
contains the terms and conditions for your acceptance of credit and debit cards for the sale of your goods
and/or services.
APPLICATION
ACCESS AND USE LICENSE
The
Application is licensed to you, not sold. Except for the limited license
granted in this Agreement, Apriva and its licensors retain all right, title and
interest in the Application, all copies thereof, and all proprietary rights in
the Application, including copyrights, patents, trademarks and trade secret
rights.
1. GRANT OF LICENSE. This
Agreement grants you the following rights, as applicable:
· License.
During the term of this Agreement, Apriva grants you a royalty free, revocable,
nontransferable, nonexclusive license to use the object code version of the
Application for the purpose of installation and use on hardware devices (to be
provided by you) solely for use within your organization in connection with
payment processing services provided by Apriva or one of its authorized gateway
service providers.
· Enhancements.
Apriva reserves the right to upgrade, enhance, change or modify the
Application at any time in its sole discretion (“Enhancements”). Any
Enhancements made available to you by Apriva, if any, will be subject to the
terms of this Agreement, except to the extent that conflicting or more
restrictive provisions are agreed upon in future agreements relating to such
Enhancements.
· Third
Party Components. The Application and future Enhancements may contain
certain third party components (“Third Party Components”) which are provided to
you under terms and conditions which are different from this Agreement, or
which require Apriva to provide you with certain notices and/or information.
Apriva will identify such third party components in a “LICENSE.TXT” file (and shall
include any associated license agreement, notices and other related information
therein) delivered with the Application or future Enhancements. Your use of
each Third Party Component which contains or is accompanied by its own license
agreement, as identified in the LICENSE.TXT file(s), will be subject to the
terms and conditions of such other license agreement, and not this Agreement.
Notwithstanding the foregoing, the following terms and conditions apply to all “Third
Party Components”: (i) all Third Party Components are provided on an “AS IS”
basis; (ii) Apriva will not be liable to you or indemnify you for any claims
related to the Third Party Components; and (iii) Apriva will not be liable for
any direct, indirect, incidental, special, exemplary, punitive or consequential
damages with respect to the Third Party Components. Except as may be provided
in the LICENSE.TXT file(s), your sole and exclusive remedy with regard to any
defect, claim, or other dispute relating to the Third Party Components is to
cease use of such components.
· Term.
The license will commence on the date you first use the Application or accept
this Agreement, whichever is earlier, and continue in effect until it is terminated
as provided in Section 5 (Termination).
· Limitations
on Copying and Distribution. You may not copy or distribute the
Application except to the extent that copying is necessary to use the
Application for purposes set forth herein. You may make a single copy of the
Application for backup and archival purposes.
· Limitations
on Reverse Engineering and Modification. You may not reverse engineer,
decompile, disassemble, modify or create works derivative of the Application.
You may not alter or modify any disabling mechanism which may be resident in
the Application.
· Sublicense,
Rental, and Third Party Use. You may not assign, sublicense, rent,
timeshare, loan, lease or otherwise transfer the Application, or directly or
indirectly permit any third party to use or copy the Application.
· Proprietary
Notices. You may not remove any proprietary notices (e.g., copyright
and trademark notices) from the Application. You must reproduce the copyright
and all other proprietary notices displayed on the Application on each
permitted back-up or archival copy.
· Use
in Accordance with Documentation. All use of the Application shall be in
accordance with its then current documentation.
· Compliance
with Applicable Law. You shall be solely responsible for ensuring that your
use of the Application is in compliance with all applicable foreign, federal,
state and local laws, and rules and regulations.
· Confidentiality.
You acknowledge and agree the Application and associated documentation
constitute valuable proprietary and confidential information and intellectual
property (collectively, the “Proprietary Information”) of Apriva. You may not
use or disclose the Proprietary Information without Apriva’s prior written
consent, except disclosure to and subsequent uses by your employees and
contractors who have a need-to-know, provided such employees and contractors
have executed written agreements restricting use or disclosure of Proprietary
Information that are at least as protective as those set forth in this
Agreement. You agree to use at least the same degree of care in protecting the
Proprietary Information as you use to protect your own similar information, but
in no event less than reasonable care. You acknowledge that due to the unique
nature of the Proprietary Information, Apriva will not have an adequate remedy
in money or damages in the event of any unauthorized use or disclosure of its
Proprietary Information. In addition to any other remedies that may be
available in law, in equity or otherwise, Apriva shall be entitled to obtain
injunctive relief to prevent such unauthorized use or disclosure. You shall
not use any information or data disclosed by Apriva in connection with this
Agreement to contest the validity of any Apriva intellectual property. Any
such use of Apriva’s information and data shall constitute a material,
non-curable breach of this Agreement.
3. MAINTENANCE SERVICES.
During the period for which you pay for Maintenance Services, Apriva will
provide you with any Enhancements that Apriva distributes to its other
customers generally without additional charge. If Apriva distributes any
Enhancement as an option or new product for which it charges an additional fee,
it will make such option or new product available to you on the same terms as
it offers generally to other similarly situated customers. Apriva will provide
reasonable telephone support to assist you in resolving problems encountered in
the use of the Application, in Apriva’s judgment, are attributable to the
Application. Such support will be provided during Apriva’s normal business
hours, Monday through Friday, excluding Apriva’s regularly scheduled holidays.
4. FEES. There are no fees
to be paid by you to Apriva for the grant of the license to the Application. You
are, however, responsible for paying all fees associated with your use of the
processing services provided by Apriva under the Gateway Services Agreement.
· Breach
of Agreement. Without prejudice to any other rights, Apriva may terminate
this Agreement on thirty (30) days prior written notice if you fail to comply
with any of the terms and conditions of this Agreement and fail to cure the
failure within the foregoing period.
· Infringement
Claims. In the event of a claim of intellectual property infringement by
any third party relating to the Application (“Infringement Claims”), Apriva
reserves the right to immediately terminate this Agreement and the rights
granted hereunder. In such event, Apriva shall refund a pro rata portion of
any prepaid fees
· No
Longer Obtaining Processing Services. This Agreement shall automatically
terminate in the event you cease to obtain payment processing services provided
by Apriva under the Gateway Services Agreement.
· Termination
for Convenience. You may terminate this Agreement at any time by
discontinuing use of the Application, complying with your termination
obligations set forth below, providing Apriva written notice, and returning the
Application to Apriva.
· Licensee’s
Termination Obligations. In the event of any expiration or termination of
this Agreement for any reason, you must remove all copies of the Application
and all of its components from all of your systems, and destroy all related
media and documentation, if any. The license granted to the Application will
automatically terminate on expiration or termination of this Agreement.
7. WARRANTY DISCLAIMER. EXCEPT
AS PROVIDED IN SECTION 6 (LIMITED WARRANTY), THE APPLICATION AND MAINTENANCE
SERVICES ARE PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, APRIVA AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT
TO THE APPLICATION AND MAINTENANCE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET
ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE.
APRIVA DOES NOT WARRANT THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR
THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR
THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY APRIVA SHALL CREATE ANY ADDITIONAL APRIVA
WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF APRIVA’S OBLIGATIONS HEREUNDER.
APRIVA MAKES NO WARRANTY OF ANY KIND, WHETHER
EXPRESS OR IMPLIED WITH REGARD TO ANY, HARDWARE, PRODUCTS, SOFTWARE, OR
PROGRAMMING OBTAINED BY VENDOR FROM THIRD PARTIES (COLLECTIVELY, THE “THIRD
PARTY ITEMS”). APRIVA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
TITLE/NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND FITNESS
FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY ITEMS. VENDOR SHOULD
CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS OF THE THIRD PARTY ITEMS FOR
WARRANTY AND PERFORMANCE INFORMATION.
THE APPLICATION MAY BE USED TO ACCESS AND TRANSFER
INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT APRIVA DOES NOT
OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR
OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS)
MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB‑SITES,
COMPUTERS, OR NETWORKS. APRIVA SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.
YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND
SYSTEMS.
Some
states do not allow the exclusion of incidental or consequential damages, or
the limitation on how long an implied warranty lasts, so some of the above may
not apply to you.
13. AUTHORIZATION. By downloading,
installing, accessing, or using the Application, you indicate that you have the
authority to bind yourself and your organization to the terms of this
Agreement.
The Parties have caused this Agreement to be executed as of the Effective
Date by their duly authorized representatives.
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By: ___________________________
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Name: ___________________________
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Title: ___________________________
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Date: ____________________________
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Apriva L.L.C., an Arizona Limited Liability Company
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By: ___________________________
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Name: ________________________
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Title: _________________________
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Date: _________________________
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