Last updated: April 1, 2021
INTRODUCTION
These Sub-merchant Heartland Terms and Conditions, any attachment hereto (including without limitation, if applicable, the EULA (defined below)), and any terms on the Heartland Order Form (collectively the “Heartland Agreement”) govern Sub-merchant’s use of any Hardware, Software, and/or Additional Services identified on the Heartland Order Form (as each term is defined below, and collectively, the “Heartland Offerings”) and provided to Sub-merchant, and is made and entered into by and between the Sub-merchant listed on the Heartland Order Form and Heartland Payment Systems, LLC, a Delaware limited liability company (“Heartland”) with an office at 3550 Lenox Road NE, Suite 3000, Atlanta, GA 30326. Any Heartland Offerings are being offered solely in conjunction with Sub-merchant’s agreement with its service provider (“Provider Partner”) and the services provided by ProPay, Inc. (“ProPay”) to Sub-merchant and may not be used separately from that agreement and/or those services.
1. HEARTLAND OFFERINGS. Subject to the terms of the Heartland Agreement, Heartland shall make available to Sub-merchant the Heartland Offerings which may consist of one or more of the following, as selected on the Heartland Order Form:
1.1. Certain point-of-sale software that leverages Heartland’s Portico gateway and is identified by Heartland from time to time and selected by Sub-merchant (collectively, the “Software”);
1.2. Certain point-of-sale hardware including identified by Heartland from time to time, including, but not limited to C2X card reader, PAX S300 terminal, PAX A920 terminal (collectively, the “Hardware”); and
1.3. Certain other additional services selected by Sub-merchant from time to time, including, but not limited to, tokenization services and multi-capture (collectively, the “Additional Services”).
1.4. Sub-merchant shall comply with all security and operational requirements, policies, and procedures relating to the Heartland Offerings as specified in the documentation related thereto and as may be otherwise communicated or provided by Heartland to Sub-merchant from time to time. Sub-merchant shall use the Heartland Offerings solely in the ordinary conduct of its business. Sub-merchant is solely responsible for knowing all laws, rules, and regulations applicable to its use of the Heartland Offering and will at all times strictly comply with such laws, rules and regulations of every governmental authority or card association having jurisdiction over Sub-merchant.
1.5. The Software, Hardware, Additional Services, and other features and services under this Heartland Agreement, and the rights and obligations related to them, may be provided by certain Affiliates of Heartland. “Affiliate” means, with respect to a party, any entity which is controlling, controlled by, or under common control with such party.
2. PROPAY PROCESSING.
Sub-merchant may only use the Heartland Services in connection with its ProPay account. Sub-merchant shall comply (and as between the parties hereto shall bear sole responsibility for complying) with all terms and conditions of its Sub-merchant processing agreement with ProPay.
3. PAYMENT TERMS.
3.1. Sub-merchant shall pay the fees for the Heartland Offerings listed on the Heartland Order Form (the “Fees”) on the terms described in this section. ProPay will deduct from the proceeds of Sub-merchant’s transactions the Fees together with any other fees, fines or other debts due to Heartland and/or ProPay for the Heartland Offerings; provided, however, that Sub-merchant agrees that Heartland may, on ProPay’s behalf, bill Sub-merchant directly for any such amounts. All costs, fees, and charges in this Heartland Agreement (including shipping costs and other payments) are stated in U.S. dollars, and any taxes, duties, fees, and other governmental charges of any kind (including sales, service, and use taxes) that are imposed by or under the authority of any government or any political subdivision thereof on the fees for the Heartland Offerings shall be borne by Sub-merchant and shall not be considered a part of, a deduction from, or an offset against such fees.
3.2. Except as may be expressly stated in the Heartland Order Form, the Fees do not cover, and Heartland is not responsible for, replacement or repair of materials such as printer paper, ink, batteries or other consumables, any hardware or software not provided by Heartland with and as part of the Software, Hardware, or Additional Services, or cosmetic damage.
3.3. The Fees are non-cancelable during the Term and Sub-merchant is responsible for such Fees whether or not Sub-merchant actually uses the Heartland Offerings during the term. If Sub-merchant fails to pay any fees when due, Heartland may charge a late payment fee on the unpaid amounts equal to the lesser of (i) 10% per annum, or (ii) the maximum legal rate, and, if Sub-merchant has not cured such failure to pay within thirty (30) days after written notice thereof, Heartland may take such further action in its discretion including, without limitation, suspension or termination of the Heartland Agreement and any and/or all Heartland Offerings immediately upon notice to Sub-merchant (which shall not relieve Sub-merchant of its obligation to pay all outstanding Fees and all Fees payable under the remaining length of the Term).
3.4. Sub-merchant agrees to promptly and carefully review any statements or other documents provided or made available (physically, electronically, or otherwise provided by Heartland, ProPay, or others, including through your Sub-merchant portal) in connection with the Heartland Offerings. IT IS AGREED THAT IN NO EVENT WILL HEARTLAND OR PROPAY BE LIABLE FOR ANY CLAIM, LOSS, BILLING ERROR, DAMAGE, OR EXPENSE ARISING OUT OF OR RELATING TO THIS HEARTLAND AGREEMENT WHICH IS NOT REPORTED IN WRITING TO HEARTLAND OR PROPAY WITHIN SIXTY (60) DAYS OF SUCH FAILURE TO PERFORM, OR IN THE EVENT OF A BILLING ERROR WITHIN NINETY (90) DAYS OF THE DATE OF THE INVOICE OR APPLICABLE STATEMENT. SUB-MERCHANT HEREBY EXPRESSLY WAIVES ANY SUCH CLAIM THAT IS NOT BROUGHT WITHIN THE SPECIFIED TIME PERIODS.
4. SOFTWARE TERMS.
4.1. Sub-merchant’s use of any Software provided by Heartland hereunder is subject to the End User License Agreement (“EULA”), attached hereto as Schedule 1. By accepting and/or using the Software, Sub-merchant expressly acknowledges that it has read the EULA and agreed to the terms thereof. If Sub-merchant does not agree to the terms of the EULA, Sub-merchant should not use the Software.
4.2. Heartland will provide Software maintenance, including new versions, updates and bug fixes as it deems necessary to the Software at no additional charge on an when and if available basis. Such new versions, updates and bug fixes shall be provided by Heartland at no additional charge on an when and if available basis. Sub-merchant acknowledges that it shall be responsible for any and all damages arising from Sub-merchant’s failure to install Software updates provided by Heartland to Sub-merchant, and Heartland shall have no liability to Sub-merchant for any such failure.
5. HARDWARE TERMS.
5.1. Any Hardware is Heartland’s property and will not become your property unless purchased by you in accordance with the terms hereof. Upon delivery of the Hardware to Sub-merchant, Sub-merchant shall bear the entire risk of loss, theft, destruction of or damage to the Hardware or any portion thereof from any cause whatsoever (“Loss or Damage”), whether or not covered by insurance, and whether or not such Hardware is in use by you at the time of the loss event. No Loss or Damage shall relieve Sub-merchant of its obligations hereunder. Sub-merchant shall keep the Hardware in a safe environment and protect it from loss, theft, damage, or any legal encumbrance, and maintain it in accordance with Heartland’s maintenance recommendations. Sub-merchant acknowledges that the it shall be solely responsible for installation of the Hardware. Sub-merchant further acknowledges that it shall be responsible for any and all damages arising from Sub-merchant’s failure to install updates deemed by Heartland to be critical to Sub-merchant’s continued uninterrupted, secure use of the Hardware and Software, as applicable, and Heartland shall have no liability to Sub-merchant for any such failure. Sub-merchant will maintain broadband internet service, at Sub-merchant’s expense, throughout the term of this Agreement. Heartland shall provide Sub-merchant with operating instructions that will instruct Sub-merchant in the proper use of the Hardware, and Sub-merchant shall install, use and operate the Hardware only in such manner. Sub-merchant shall provide the Hardware with a suitable secure space and power for its proper operation. Sub-merchant shall provide all necessary infrastructure, including without limitation, power outlets, grounding and anti-static environments required for the safe and efficient operation of the Hardware in accordance with the specifications of Heartland and any other applicable specifications or regulations. Sub-merchant shall not move the Hardware, attach any devices, change its method of telecommunication with the Software, or install any software without Heartland’s prior written consent. At all times during the Term of this Heartland Agreement, Sub-merchant shall maintain adequate insurance coverage sufficient to cover the full replacement cost of any Hardware provided to Sub-merchant hereunder. With respect to any item of Hardware rented to Sub-merchant by Heartland, Sub-merchant will not be liable for normal wear and tear, provided, however, that Sub-merchant will be liable to Heartland in the event that any rented item of Hardware is lost, destroyed, stolen or rendered inoperative.
5.2. If Sub-merchant returns any Hardware to Heartland, Sub-merchant shall be entirely liable for any associated shipping and insurance costs. Sub-merchant must retain proof of return such as the courier tracking record and shall insure all returns for the full replacement value of the Hardware. Sub-merchant acknowledges and agrees that any Sub-merchant data stored on any Hardware returned to Heartland will not be preserved for Sub-merchant. Except for Hardware returned to Heartland for maintenance and identified with a valid RMA# provided to Sub-merchant by Heartland, any Hardware returned to Heartland for any reason that is determined by Heartland to be in non-working order will be billed to Sub-merchant at full replacement value. Heartland shall return any such Hardware to Sub-merchant at Sub-merchant’s expense. If Sub-merchant fails to return any Hardware to Heartland within thirty (30) days following a warranty exchange, following the expiration or earlier termination of the Term, or following the receipt of new Hardware pursuant to the terms hereof, Heartland shall invoice the Sub-merchant for the full replacement value of such Hardware and collect payment via any established payment method immediately.
5.3. If Sub-merchant wishes to purchase the Hardware utilized by Sub-merchant hereunder, Sub-merchant shall notify Heartland by written request. In the event that Heartland elects to sell the Hardware to Sub-merchant, Heartland shall issue a purchase price amount for the applicable Hardware. Upon receipt of Heartland’s notice setting forth the purchase price amount, Sub-merchant may elect, within thirty (30) days following the date of Heartland’s notice, to either a) pay the purchase price amount in accordance with the terms set forth in Heartland’s notice and take ownership of the Hardware, or b) decline to purchase the Hardware at the stated purchase price amount, maintain possession of the Hardware and continue to pay the monthly rental fees in accordance with this Agreement.
5.4. Sub-merchant acknowledges and agrees that such Hardware may be new or refurbished. Heartland will replace or repair, in Heartland’s sole discretion, any Hardware component which fails in normal use due to a defect in materials or workmanship at no fault of Sub-merchant at no charge; provided, however, that replacement and repair of the Hardware does not cover installation, removal, repair, maintenance or reinstallation of equipment that is not part of the Hardware including any accessories, attachments, or other devices working in conjunction with or near the Hardware such as internet modems, routers or wireless radio units, music service equipment or electrical service external to the Hardware. For all other loss or malfunction, Heartland will repair or replace the defective part or Hardware upon Sub-merchant’s payment of the then-current applicable Hardware replacement fee. Sub-merchant acknowledges and agrees that Sub-merchant’s negligence will be determined by Heartland, in its sole discretion. Heartland (or a third party selected by Heartland) may replace a defective component of the Hardware using new parts or parts manufactured from new, refurbished, or serviceable used parts that are functionally equivalent to new. The parts and products that are replaced become Heartland’s property. Charges may apply for additional services provided at the time of repair or replacement.
5.5. WHEN PROVIDING REPAIR OR REPLACEMENT SERVICES, HEARTLAND WILL USE REASONABLE EFFORTS TO REINSTALL THE HARDWARE’S PRIOR SOFTWARE CONFIGURATION BUT WILL NOT PROVIDE ANY RECOVERY OR TRANSFER OF SOFTWARE OR DATA NOT ORIGINALLY INCLUDED WITH AND AS PART OF THE HARDWARE AND/OR SOFTWARE. SUB-MERCHANT AGREES THAT HEARTLAND MAY INSTALL NEWER VERSIONS, UPDATES, OR FIXES OF THE SOFTWARE THAN WERE INSTALLED ON SUB-MERCHANT’S HARDWARE PRIOR TO ANY REPAIR OR REPLACEMENT.
6. ADDITIONAL SERVICES TERMS.
6.1. Sub-merchant’s receipt of certain Additional Services that are provided via software or SaaS, including without limitation, Auto-Account Updater, Decline Minimizer, Multi-capture, are subject to the terms of the EULA. By accessing or receiving such Additional Services, Sub-merchant expressly acknowledges that it has read the EULA and agreed to the terms thereof. If Sub-merchant does not agree to the terms of the EULA, Sub-merchant should not use the Software.
6.2. In the event that Sub-merchant has elected to receive Tokenization Services, the following terms and conditions of this Section 6.2 shall apply with respect thereto. Heartland will tokenize each cardholder primary account number (“PAN”) submitted to Heartland by Sub-merchant in connection with a card transaction. Heartland’s tokenization of each PAN submitted to Heartland by Sub-merchant will occur after authorization of the applicable transaction. Sub-merchant hereby acknowledges that tokens may be assigned to a token group which may be shared among other Heartland merchants. Sub-merchant further acknowledges and agrees that all tokens provided or created in connection herewith remain the sole and exclusive property of Heartland and cannot be transferred or removed from Heartland and will not follow Sub-merchant to any other provider without prior written approval from Heartland, which approval may be approved or withheld by Heartland in its sole discretion.
7. OWNERSHIP; RESTRICTIONS.
7.1. Sub-merchant acknowledges and agrees that Heartland Offerings and all intellectual property provided, embodied, or used in association therewith, including without limitation all trademarks, service marks, logos, software, designs, templates, encryption algorithms, copyrights, and other proprietary rights, and any documentation related to any of the foregoing (collectively, “Intellectual Property Rights”), are and shall remain solely and exclusively owned by Heartland (or other third party owner as the case may be).
7.2. To the extent Sub-merchant obtains any right, title or interest in any Heartland Offerings or in any update, enhancement, derivative, or modification to the foregoing (including in connection with any integration of the Platform with other services or products via use of the APIs), Sub-merchant hereby assigns to Heartland any and all such right, title and interest. Sub-merchant acknowledges that any improvements, additions, or modifications to the Heartland Offerings, or any documentation related to the foregoing suggested by Sub-merchant, and all Intellectual Property Rights contained therein, are the property of Heartland, and Sub-merchant hereby assigns all right, title, and interest therein to Heartland. Sub-merchant agrees to execute such documents as may be necessary or helpful for Heartland to perfect and record the assignments set forth above. Except for the license grants expressly set forth in the Heartland Agreement, nothing in the Heartland Agreement grants to or confers in Sub-merchant any license or right of ownership in any of the foregoing. Heartland grants no implied licenses hereunder. Sub-merchant acknowledges and agrees that it shall not import, export, or re-export from the Heartland Offerings, or otherwise provide to any third party, directly or indirectly, any data that is captured through use of the Heartland Offerings.
7.3. Sub-merchant shall have no right to market, distribute, sell, assign, pledge, sublicense, lease, deliver, or otherwise transfer the Heartland Offerings, or any component thereof, to any third party. Sub-merchant shall not, and shall not permit any third party to, use the Heartland Offerings directly or indirectly to provide a time-sharing or subscription service to any third party or to function as a service bureau or application service provider. Sub-merchant shall not reverse engineer, decompile, disassemble, translate, modify, alter, create any derivative works based upon, or otherwise change the Heartland Offerings or any APIs or any part thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Software included in the Services, or the APIs or any part thereof, or access or use the Heartland Offerings in any way except via access provided through use in accordance with Heartland documentation and the terms of the Heartland Agreement.
8. CONFIDENTIALITY.
8.1. The parties acknowledge that in the course of this Heartland Agreement each party (the “Recipient”) may obtain from the other (the “Discloser”), directly or from performance of its obligations under this Heartland Agreement, (i) information relating to the Intellectual Property Rights, and business of the Discloser, (ii) information that is of a nature or is disclosed under circumstances such that a reasonable person would consider it confidential, and (iii) certain other non-pubic information the Discloser designates as confidential, including without limitation computer programs and code, documentation, trade secrets, technology, know- how, ideas, algorithms, operating and testing procedures, structure, interfaces, specifications, documentation, problem reports, analysis and performance information, potential pricing, marketing, licensing and other technical and business information of the other party (collectively “Confidential Information”). The terms of the Heartland Agreement shall also be considered Confidential Information.
8.2. The Recipient agrees not to use Confidential Information for any purpose except in connection with the Platform in accordance with the terms and conditions of this Heartland Agreement. Recipient will not disclose Confidential Information to anyone other than its employees or third parties, as approved by the Discloser, who have a need to access the information for the foregoing purpose and who have agreed to abide by the provisions hereof. Recipient shall protect the secrecy of Confidential Information, exercising at least those measures used to protect its own confidential information of like importance, which shall in no event be less than a reasonable degree of care.
8.3. Nothing herein shall prevent the use or disclosure of information which: (i) was in the public domain at the time of disclosure by Discloser; (ii) becomes publicly known and made generally available other than through a breach by Recipient of a duty of confidentiality to Discloser; (iii) is already known to Recipient at the time of disclosure hereunder as shown by Recipient’s files and records in existence immediately prior to the time of disclosure; (iv) is disclosed to Recipient by a third party without restriction and without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Confidential Information (as can be demonstrated by legally competent evidence). In the event that Recipient is required by law, regulation, or order of any governmental body or governing regulatory authority to disclose Confidential Information, Recipient must first give written notice of such required disclosure to Discloser, make all reasonable efforts to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which disclosure is required and allow Discloser to participate in the proceeding.
8.4. Upon termination of the Heartland Agreement, or upon Discloser’s request, Recipient shall promptly return or destroy and remove from all computers, hard drives, networks, and other storage media, all copies and manifestations of Confidential Information and so certify to Discloser in writing. The obligations in this Section 8 shall continue indefinitely during the term and after the termination or expiration of the Heartland Agreement.
8.5. Recipient acknowledges that a breach of this Section 8 would cause irreparable injury to Discloser for which monetary damages may not be an adequate remedy. Accordingly, in addition to other available remedies, Discloser shall be entitled to seek appropriate injunctive relief and other equitable remedies without posting a bond in the event of such breach.
9. DISCLAIMERS; LIMITATION OF LIABILITY.
9.1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, HEARTLAND MAKES NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE HEARTLAND OFFERINGS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTELLECTUAL PROPERTY RIGHT INFRINGEMENT, AND/OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SUB-MERCHANT ACKNOWLEDGES THAT HEARTLAND HAS NOT REPRESENTED OR WARRANTED THAT SUB-MERCHANT’S ACCESS TO OR USE OF THE HEARTLAND OFFERINGS WILL BE UNINTERRUPTED, ERROR FREE, SECURE, OR WITHOUT DELAY. SUB-MERCHANT HAS NOT RELIED ON ANYTHING EXCEPT AS EXPRESSLY SET FORTH HEREIN IN DECIDING TO ENTER INTO THE HEARTLAND AGREEMENT. HEARTLAND MAKES NO WARRANTIES THAT THE HEARTLAND OFFERINGS WILL OPERATE IN CONJUNCTION WITH ANY OTHER SOFTWARE, HARDWARE, OR OTHER SYSTEMS OUTSIDE THIS HEARTLAND AGREEMENT.
9.2. HEARTLAND DOES NOT GUARANTEE THE ABSENCE OF, AND THIS AGREEMENT DOES NOT ENSURE OR COVER, ANY ERRORS, DEFECTS, OR DAMAGE TO ANY HARDWARE, SOFTWARE, OR DATA GENERATED BY THE SOFTWARE AND/OR HARDWARE UNDER ANY CIRCUMSTANCE. SUB-MERCHANT WILL REVIEW ALL INFORMATION AND ENSURE THAT ANY AND ALL DATA PROVIDED IN CONNECTION WITH THE EHARTLAND OFFERINGS IS ENTERED CORRECTLY AND ACCURATELY AND THAT THE DATA AND RESULTS GENERATED BY THE SOFTWARE AND/OR HARDWARE IS ACCURATE.
9.3. SUB-MERCHANT ACKNOWLEDGES AND AGREES THAT HEARTLAND IS NOT LIABLE FOR ANY DAMAGES, LOSSES OR INTERRUPTION OF SUB-MERCHANT’S BUSINESS CAUSED BY THE FAILURE OF ANY THIRD PARTY SOFTWARE OR HARDWARE, INCLUDING ANY AND ALL PAYMENT PROCESSING, MUSIC, INTERNET, COMMUNICATIONS OR OTHER RELATED DEVICE. HEARTLAND IS UNDER NO OBLIGATION TO REPLACE, REPAIR OR CURE ANY THIRD PARTY SOFTWARE OR HARDWARE. NO LOSS OR DAMAGE TO THE HARDWARE OR ANY PART OF THE HARDWARE WILL REDUCE OR TERMINATE ANY OBLIGATION OF SUB-MERCHANT UNDER THIS AGREEMENT, WHICH WILL CONTINUE IN FULL FORCE AND EFFECT THROUGH THE TERM.
9.4. NOTWITHSTANDING ANYTHING ELSE IN THIS HEARTLAND AGREEMENT OR OTHERWISE, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO ANYTHING RELATING TO THE SUBJECT MATTER OF THE HEARTLAND AGREEMENT (INCLUDING WITHOUT LIMITATION FROM THE USE, INTERRUPTION IN USE, OR FAILURE OF ANY PART OF THE PLATFORM) UNDER ANY BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND RELIANCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR GOODWILL, LOSS OF SAVINGS, LOSS OF REVENUE OR GOODWILL, LOSS OF SAVINGS, LOSS OF DATA, LOSS OF USE, LOST BUSINESS OR LOST PROFITS), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. FOR THE AVOIDANCE OF DOUBT, ALL DAMAGES ASSOCIATED WITH INDEMNITY OBLIGATIONS SHALL BE DEEMED DIRECT DAMAGES.
9.5. IN NO EVENT SHALL HEARTLAND’S TOTAL LIABILITY TO SUB-MERCHANT OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY SUB-MERCHANT TO HEARTLAND UNDER THIS HEARTLAND AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM LESS ANY AND ALL PAYMENTS PAID BY HEARTLAND WITH RESPECT TO ITS LIABILITIES UNDER THIS HEARTLAND AGREEMENT.
9.6. The limitations of this Section 9 shall apply notwithstanding any failure of essential purpose of any limited remedy provided herein and even if either or both parties have been advised of the possibility of such damages in advance. If applicable law restricts the exclusion or limitation of certain types of damages, then the foregoing provisions shall be deemed to exclude and limit such party’s liability for any such damages to the maximum extent permitted by law. The provisions of this Section 9 allocate the risks under the Heartland Agreement between the parties, and the parties have relied on the limitations set forth herein in determining whether to enter into the Heartland Agreement.
10. INDEMNIFICATION.
10.1. Sub-merchant will indemnify, defend, and hold harmless Heartland, any Affiliate, and their respective officers, directors, agents, and employees, as well as any subcontractor of Heartland, and any payment service provider associated with Heartland or Heartland Offerings, and their respective officers, directors, agents, and employees, from and against any and all claims, losses, demands, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees), arising out of or relating to (i) Sub-merchant acts or omissions in connection with its use of or access to the Heartland Offerings; and (ii) Sub-merchants breach of the provisions of this Heartland Agreement.
10.2. Heartland shall indemnify, defend and hold Sub-merchant and its Affiliates harmless, at Heartland’s expense, against any claim, suit or proceeding brought against Sub-merchant and/or its Affiliates arising out of a claim that any use or provision of the Platform or Software constitutes an infringement of a patent, copyright, trademark, or other proprietary or intellectual property right of a third party (each an “Eligible Claim”). Heartland may settle, at Heartland’s sole expense, any claim, suit or other action for which Heartland is responsible under this section. Heartland will not have an obligation to indemnify Sub-merchant to the extent that an Eligible Claim is based solely upon the use of the Heartland Offerings in combination, operation or use with other equipment, materials or software not supplied under this Heartland Agreement or the use of the Heartland Offerings in violation of the license rights granted under this Heartland Agreement. Upon notice of an alleged infringement or if in Heartland’s opinion such a claim is likely, or alternatively, if Sub-merchant’ rights hereunder are restricted by Heartland or a valid court order, then Heartland shall at its sole option and expense: (i) procure the right for Sub-merchant to continue using the alleged infringing material; (ii) modify the material to make it non-infringing while retaining comparable features, functionality and quality; or (iii) terminate this Heartland Agreement and provide a refund of all one-time fees paid by Sub-merchant under this Heartland Agreement on a five year straight line depreciation basis commencing on the Effective Date.
10.3. The indemnified party shall promptly notify the indemnifying party of any claim for which indemnification is sought, following actual knowledge of such claim, provided however that the failure to give such notice shall not relieve the indemnifying party of its obligations hereunder, except to the extent that such indemnifying party is materially prejudiced by such failure. In the event that any claim is brought, the indemnifying party shall have the right and option to undertake and control of the defense of such action with counsel of its choice, provided however that (i) the indemnified party, at its own expense, may participate and appear with the indemnifying party in the defense of any such claims, and (ii) the indemnified party may undertake and control of such defense in the event of the material failure of the indemnifying party to undertake and control the same. The indemnified party shall not concede or settle or compromise any claim without the prior written approval of the indemnifying party, unless such concession or settlement or compromise includes a full and unconditional release of the indemnifying party from all liabilities in respect of such claim.
11. TERM/TERMINATION.
11.1. This Heartland Agreement will extend from the Effective Date indicated on the Heartland Order Form and shall be coterminous with Sub-merchant’s written agreement with ProPay (the “Term”).
11.2. Notwithstanding anything to the contrary, either party may terminate this Heartland Agreement immediately upon written notice to the other if the other party (i) materially breaches this Heartland Agreement and fails to cure such breach within 30 days following written notice thereof, or (ii) becomes or is declared insolvent or bankrupt, commits an act of bankruptcy, or is subject to any proceeding in bankruptcy, receivership, liquidation, or insolvency.
11.3. Upon the termination or expiration of the Heartland Agreement, any and all licenses granted for use of the Heartland Offerings hereunder shall terminate and Sub-merchant shall immediately return to Heartland any and all full, complete, and intact Hardware, and each party shall comply with the provisions regarding the return or destruction of Confidential Information set forth in Section 8. Any provisions of this Heartland Agreement that by their nature are intended to survive, including, without limitation, the provisions of Sections 7, 8, 9, 10, and 13 shall survive termination or expiration of the Heartland Agreement.
11.4. Promptly up termination of this Agreement, Sub-merchant agrees to return all Hardware to Heartland (other than Hardware purchased by Sub-merchant).
12. ENTIRE AGREEMENT; AMENDMENT.
12.1. The Heartland Agreement (including any and all exhibits and addendums incorporated herein) constitutes the complete agreement between the parties with respect to the Heartland Offerings and supersedes all prior or contemporaneous discussions, representations, and proposals, whether written or oral, with respect to the subject matter hereof. No other terms and conditions will govern, including any terms of any purchase order or other document submitted by Sub-merchant in connection herewith, and such terms will not modify the Heartland Agreement and are hereby rejected by Heartland.
12.2. Heartland may amend the terms of (including, without limitation, the Fees) or add new terms to this Heartland Agreement at any time and any such changes or new terms shall be effective thirty (30) days after notice thereof is given by Heartland to Sub-merchant. In the event that Sub-merchant does not agree to any amendment to the terms of this Agreement, Sub-merchant may terminate this Agreement without penalty by providing Heartland with written notice of termination within thirty (30) days of Sub-merchant’s receipt of written notice specifying such amendment. For avoidance of doubt, Sub-merchant’s performance hereunder on and after the effective date of any amendment hereto shall be deemed as Sub-merchant’s unconditional agreement to comply with the terms and conditions of the Agreement, as modified by any such amendment.
13. MISCELLANEOUS.
13.1. The Heartland Agreement may be executed in one or more counterparts, each of which shall be an original and all of which together shall constitute one instrument. Facsimile signatures and other reproductions of original signatures may be accepted as original signatures.
13.2. Sub-merchant shall not assign or subcontract the Heartland Agreement or any rights or obligations hereunder without the prior written consent of Heartland, provided however, that Heartland may assign any rights or obligations under this Heartland Agreement to an Affiliate or in change of control. The Heartland Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns.
13.3. This Heartland Agreement shall be governed by and construed according to the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof. Any suit, action or proceeding (collectively “Action”) arising out of or relating to this Agreement shall be brought only in the Superior Court of the State of Georgia, County of Muscogee, or the United States District Court for the Middle District of Georgia. Sub-merchant hereby agrees and consents to the personal and exclusive jurisdiction of said courts over it as to all such actions and Sub-merchant further waives any claim that such Action is brought in an improper or inconvenient forum. In any such Action, the parties waive trial by jury. In any judicial proceeding arising out of or relating to this Heartland Agreement, the prevailing party shall recover, in addition to all damages awarded, all court costs, fees and expense of experts and reasonable attorneys’ fees.
13.4. Each party acknowledges and represents that, in executing the Heartland Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of the Heartland Agreement. The Heartland Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
13.5. The parties are independent contractors under the Heartland Agreement, and nothing contained in the Heartland Agreement shall be construed as creating any partnership, joint venture, agency, trust or other association of any kind between the parties hereto.
13.6. Any failure to enforce any provision of the Heartland Agreement shall not constitute a waiver thereof or of any other provision.
13.7. The invalidity or unenforceability of any provision of the Heartland Agreement shall not impair or affect the validity or enforceability of the Heartland Agreement or of any other provision hereof and, in such event, the parties will agree upon a substitute provision which provides the parties as near a result to the original provision as is practicable while also being valid and enforceable.
13.8. Headings used herein are for convenience only and are not part of the Heartland Agreement between the parties.
13.9. All notices or other communications permitted or required under this Heartland Agreement shall be in writing and shall be personally delivered, sent by registered or certified mail (postage prepaid) or by overnight courier, with respect to Sub-merchant to the address set forth in the Heartland Order Form and with respect to Heartland to 3550 Lenox Road Ne, Suite 3000, Atlanta, Georgia 30326, ATTN: Legal Department, and will be effective upon the earlier of receipt or one (1) day after deposit in the mail or with a courier service. Either party may from time to time change such address by giving notice to the other party in accordance herewith.
13.10. Neither party shall be deemed in default or otherwise liable under this Agreement because of its inability to perform its obligations (other than a party’s payment obligations) by reason of fire, earthquake, flood, substantial snowstorm, epidemic, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, unavailability of materials, carriers or communications facilities, act of God, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order, or any cause beyond its control.
SCHEDULE 1
END USER LICENSE AGREEMENT
LICENSOR PROVIDES THE LICENSED PRODUCTS (AS DEFINED BELOW) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) AND ON THE CONDITION THAT THE SUB-MERCHANT IDENTIFIED ON THE HEARTLAND ORDER FORM (“YOU” OR “YOUR”) UNCONDITIONALLY ACCEPT AND COMPLY WITH ALL PROVISIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT YOU MAY NOT ACCESS OR OTHERWISE USE THE LICENSED PRODUCTS. THIS END USER LICENSE AGREEMENT GOVERNS USE OF ALL LICENSED PRODUCTS, INCLUDING PRODUCTS LICENSED TO YOU UNDER PREVIOUS VERSIONS OF THIS AGREEMENT. BY CLICKING YOUR ACCEPTANCE AND/OR DOWNLOADING AND USING THE LICENSED PRODUCTS YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND, IF APPLICABLE, YOUR EMPLOYER OR OTHER ENTITY THAT YOU REPRESENT (COLLECTIVELY, “YOU” OR “LICENSEE”). WITHOUT LIMITING THE FOREGOING, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND THAT YOU AND YOUR ORGANIZATION ARE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Software
This Agreement is a legal agreement between you and Heartland Payment Systems, LLC and its affiliates (“Heartland” or “Licensor”) for any and all point-of-sale software provided to you by Licensor in connection with your agreement with ProPay and/or the Partner Provider (as such terms are defined in the Heartland Sub-Merchant Terms and Conditions (the “Heartland Agreement”)), including all software therein in object code form and any enhancements, modifications, updates, upgrades, releases or other customizations of the software provided to you by Licensor, and associated media and printed materials, and may include on-line or electronic documentation (collectively, the “Licensed Products”). This Agreement is entered into in connection with the Heartland Agreement.
License
Subject to your compliance with the terms and conditions of this Agreement and your and your organization’s compliance with the Heartland Agreement, Licensor hereby grants to you a non-exclusive, non-transferable, non-sub-licensable limited license to access and use the Licensed Products at the location(s) or on the devices specified in the Heartland Agreement (collectively, the “Licensed Sites”) during the term of the Heartland Agreements for the purposes set forth therein. No ownership is transferred, implied or granted to you, and Licensor retains full and complete title to the Licensed Products, and all intellectual property rights therein. Except as specified in this Agreement and the Heartland Agreement, you are not licensed to use the Licensed Products for any other purpose whatsoever. The license granted by this Agreement may not be given, sold, leased, rented, or otherwise transferred to any other person, entity, or location. The Licensed Products can only be used by the original licensee at the Licensed Sites. After you download the Licensed Products from the app store or are provided with a copy of the Licensed Products by Licensor, Licensor will issue you access credentials (e.g., a user name and password) that will enable you to log into and use the Licensed Products (“Access Credentials”). Your Access Credentials will enable Licensor to authenticate you as an authorized user of the Licensed Products and to provide appropriate authorizations regarding the scope of your use of the Licensed Products. Any information you provide us in connection with access to or use of the Licensed Products must be accurate, current and complete. You are solely responsible for maintaining the confidentiality and security of your Access Credentials, and for restricting access to the Licensed Sites so that others may not access protected portions of the Licensed Products. You may not share your Access Credentials with any third party, including other employees of your organization, but you may provide unique Access Credentials to a third party. Notwithstanding anything to the contrary, you are responsible for any use of or access to the Licensed Products and any activities conducted therein via your Access Credentials and any Access Credentials issued to third parties on your behalf. If you become aware of any unauthorized use of or compromise of your Access Credentials, you must notify Licensor immediately. Licensor may revoke your Access Credentials at Licensor’s discretion including, without limitation, if the applicable Heartland Agreement terminates, if your organization notifies Licensor that you no longer are authorized by the organization to access the Licensed Products or if you engage in conduct that is in breach of this Agreement or that threatens to cause harm or disruption to Licensor, your organization or other users of the Licensed Products. Once your Access Credentials are revoked or disabled, you no longer will have access to the Licensed Products.
You acknowledge that the Licensed Products are subscription-based products, and that Licensor may make changes to the Licensed Products from time to time. From time to time, Licensor may make available to you via the applicable app store or otherwise, updates, bug fixes, upgrades, patches and/or new versions of the Licensed Products (collectively, “Updates”). You agree to promptly install such Updates when they become available to you. You understand and agree that Updates may include necessary functionality and/or fixes to protect the security of the Licensed Products and that your failure to promptly install such Updates may compromise your ability to use the Licensed Products and/or result in the disabling of your Access Credentials. Licensor shall have no liability to you for any loss or damage resulting from your failure to timely accept such Updates.
Restrictions on Use
You shall use the Licensed Products strictly in accordance with the terms of this Agreement and the Heartland Agreement and in compliance with all applicable laws, rules, and regulations, including without limitation the CAN-SPAM Act. You shall not: (a) make copies of the Licensed Products; (b) disassemble, decompile, decode, reverse engineer, reprint, transcribe, extract, adapt, translate, create derivative works of, enhance or modify the Licensed Products, or any portion thereof, without the express written consent of Licensor; (c) sell, resell, distribute, assign, transfer or sublicense the Licensed Products; (d) make the Licensed Products available to or use the Licensed Products for the benefit of anyone other than your organization and the Licensor; (e) violate any applicable laws, rules, or regulations in connection with your use of the Licensed Products; (f) remove, obscure, or modify any proprietary notice (including any notice of copyright or trademark) of Licensor or its affiliates; (g) use the Licensed Products to store or transmit infringing, libelous, harassing, disparaging or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (h) use the Licensed Products to store or transmit viruses, malware, ransomware or other malicious code; (i) attempt to gain access to components of or areas within the Licensed Products that your Access Credentials do not permit you to access; or (j) use the Licensed Products to send unsolicited email or other unsolicited messages to any third party. Any act inconsistent with full and complete protection of Licensor’s copyright and common law rights in the Licensed Products is expressly and strictly prohibited by this Agreement.
Without in any way limiting the foregoing, you represent and warrant that if you import any email addresses or lists of email addresses (collectively, “Lists”) into any of the Licensed Products, you have complied with all applicable laws in connection with obtaining and providing such Lists, and that your use of such Lists in connection with the Licensed Products will not violate applicable law, including without limitation the CAN-SPAM Act of 2003 and regulations thereunder and all other applicable U.S., state, and local laws, or any third-party right. Without in any way limiting the foregoing, you represent and warrant that each List consists only of email addresses that (i) can be categorized as “opt-in” recipients by such recipients’ agreements with you to receive your materials via email, and (ii) have not notified you of the applicable recipient’s desire to not receive materials from you via email. You further represent and warrant that you will not at any time import into the Licensed Products any List that you have purchased, rented, harvested or leased from a third-party, or any List that contains email addresses that were otherwise collected outside of your purview. If at any time any recipient on a List notifies you of such recipient’s desire to not receive materials from you via email, you agree to not utilize the Licensed Products to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to such recipient. If at any times you export any List from the Licensed Products, you assume complete responsibility for the subsequent use and exploitation of such List and hereby release Licensor from any liability in connection with the use and exploitation of such List.
You acknowledge that any violation of the restrictions on use listed above will cause irreparable harm to Licensor. Licensor shall be entitled to enforce both its legal and equitable remedies to prevent such harm. Without limiting the foregoing, you are solely responsible for the legality and appropriateness of any and all content you provide to or through the Licensed Products.
Rights in Proprietary Licensed Products
The Licensed Products are protected by copyright and contain proprietary information protected by copyright laws, intellectual property laws, international treaty provisions and other applicable laws. You shall not remove, alter or obscure any proprietary or other legend or restrictive notice contained in or affixed to the Licensed Products. Any backup copy of the Licensed Products shall include all copyright and other intellectual property protection notices. The copyright and all other right, title and interest in and to the Licensed Products (including but not limited to, any images, photographs, animation, video, audio, music and text incorporated into the Licensed Products) shall at all times remain with Licensor. The Licensed Products and any copies thereof remain the property of Licensor and as such are licensed, not sold to you during the term of this Agreement. You acknowledge that Licensor holds all right, title, and interest in and to all tangible and intangible intellectual property contained in the Licensed Products, including all trade secrets, copyrights, and other intellectual property rights pertaining thereto. You have only the limited revocable right to use the Licensed Products, during the term of this Agreement, as expressly stated in this Agreement. All rights not expressly granted herein are reserved to Licensor.
You agree fully cooperate with the Licensor in any copyright enforcement or related action brought by Licensor and shall promptly notify Licensor of the presence of any unauthorized product.
Licensee Data
“Licensee Data” means any data, content or other materials of any type that you upload, submit or otherwise transmit to or through the Licensed Products, including but not limited to data concerning or relating to your customers or your employees, but “Licensee Data” does not include any data, content or other materials of any type that is provided to Heartland from consumers in connection with consumers’ Heartland accounts and that Heartland uses across its merchant clients (“Heartland Data”). Heartland Data is the property of Heartland, and Heartland may collect, use, sell, transfer and/or disclose Heartland Data for any purpose.
At your sole discretion, you may permit a third party solution provider (“Integrator”) to access, interface with or otherwise engage with the Licensed Products or the Licensee Data. At your option, you may instruct Heartland to share Licensee Data with an Integrator, and/or you may instruct an Integrator to share Licensee Data with Heartland. For the avoidance of doubt, Integrator is your service provider and not a service provider of Heartland, and notwithstanding anything in this Agreement to the contrary, Heartland is not responsible for any acts or omissions of any Integrator. You acknowledge and agree that Heartland may, at any time terminate the access of any Integrator to the Licensed Products or the Licensee Data, without notice to you. For avoidance of doubt, and notwithstanding anything to the contrary, Heartland shall have no liability, whether to you, any Integrator, or any other third party, arising out of, relating to, or as a result of Heartland’s acts or omissions related to such termination.
You represent and warrant that (i) you have obtained all necessary rights, releases and permissions to provide all Licensee Data to Licensor and to grant the rights granted to Licensor in this Agreement, (ii) if Integrator provides data to Licensor on your behalf, you have obtained all necessary rights, releases and permissions required for Integrator to provide such data to Licensor for processing, (iii) you have an internal policy in place that provides notice to your employees that you disclose their identifying data (as defined herein) to third-party vendors like Licensor and Licensor may use their identifying data in connection with the provision of products and services under the Agreement, (iv) the Licensee Data and the transfer to, collection of, storage of, use by, and rights granted to Licensor of Licensee Data as authorized by you under this Agreement do not violate any laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies or other applicable Laws, and (v) you are responsible for all privacy notices and consents that may be required by law in connection with Licensor’s collection and processing of Licensee Data on your behalf, including without limitation, those that may be required on online properties that are hosted by Licensor on your behalf. Licensor assumes no responsibility or liability for Licensee Data, and you shall be solely responsible for Licensee Data and the consequences of using, disclosing, storing, or transmitting it. Licensee shall defend, indemnify, and hold harmless the Indemnified Parties (as defined herein) from and against any claims, actions or demands, losses, liabilities, including, without limitation all reasonable attorney’s fees and costs, made by any third party arising from or relating to Licensee Data, including but not limited to any claim brought by a third party alleging that Licensee Data, or your use of the Licensed Products in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law..
Without limiting your other obligations under this Agreement, to the extent you permit or authorize any third-party, including without limitation any Integrator, to access, interface with, or otherwise engage with the Licensed Products in any respect (“Third Party Access”), you assume complete responsibility for any liability arising out or in connection with such Third Party Access. This includes but is not limited to any claims arising out of or in connection with breaches of data security measures or violations of applicable laws, rules or regulations arising from such Third Party Access that affect Licensee Data. Licensee shall defend, indemnify, and hold harmless the Indemnified Parties from and against any claims, actions or demands, losses, liabilities, including, without limitation all reasonable attorney’s fees and costs, made by any third party arising from or relating to such Third Party Access.
Data Collection & Use
You unconditionally accept and acknowledge that Licensor may collect, use, sell, transfer and disclose non-identifying customer data, and information about your and your customers’ use of the Licensed Products, and/or third party services, including Integrator services, when such services are installed and used by you in conjunction with the Licensed Products. As used herein, “non-identifying data” means data that does not identify an individual. As used in this paragraph, “transfer” includes transmission by Licensor or the SAAS solution to a third party, another software agent or hardware device. Licensor may aggregate and anonymize your customer data or traffic and usage data with similar data of other third parties (collectively, “Aggregated Data”) and use or disclose such Aggregated Data for a variety of purposes, including but not limited to monitoring and improving the performance, features and functionality of the Services for purposes of conducting industry trend analysis, describing Licensor’s services to prospective partners and other third parties, or for any other lawful purposes determined by Licensor. For the avoidance of doubt, Licensor owns all right, title, and interest in and to the Aggregated Data. Licensor may also disclose Licensee Data if required to do so by law, legal process, litigation and/or requests from governmental authorities.
Additionally, Licensor may collect, use, transfer and disclose identifying data and information about your employees who access, interface with or otherwise engage with the Licensed Products. As used in this Agreement, “identifying data” means data that does identify an individual, and includes, but is not limited to your employees’ first and last names, schedules and transaction and other financial data. Additionally, Licensor may aggregate and anonymize such identifying data, in which event such data shall be considered “Aggregated Data” and may be used and disclosed by Licensor as set forth herein.
In addition, Licensor reserves the right to disclose, share and/or otherwise transfer Aggregated Data in connection with a corporate merger, acquisition, consolidation, the sale of a portion of Licensor’s business or the sale of substantially all of Licensor’s assets, or other fundamental corporate change, whatever form it may take.
For purposes of the California Consumer Privacy Act (“CCPA”), Licensor will not retain, use, or disclose the “personal information” (as defined in the CCPA) contained in Licensee Data for any purpose other than for performing the services specified in this Agreement or as otherwise permitted by the CCPA. Licensor shall not “sell” (as defined in the CCPA) the personal information contained in Licensee Data. Licensor certifies that it understands the requirements of the CCPA with regard to the personal information contained in the Licensee Data and will comply with them.
Security
Licensor implements security procedures to help protect Licensee Data from security attacks. However, you understand that use of the Licensed Products necessarily involves transmission of Licensee Data over networks or in connection with Integrators that are not owned, operated or controlled by us, and Licensor is not responsible for any of the Licensee Data lost, altered, intercepted or stored across such networks or Integrators. Licensor cannot guarantee that its security procedures will be error-free, that transmissions of Licensee Data will always be secure or that unauthorized third parties will never be able to defeat Licensor’s security measures or those of Licensor’s third party service providers.
Confidentiality.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential in writing. Notwithstanding the foregoing, Confidential Information of Licensor includes the Licensed Products and the terms and conditions of this Agreement. Confidential Information does not include any information that the Receiving Party can demonstrate (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with or are otherwise subject to enforceable obligations to the Receiving Party that contain protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or the Heartland Agreement to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. Each party understands and agrees that, notwithstanding any other provision of this Agreement, breach of this Confidentiality provision may cause the other party irreparable damage for which recovery of money damages would be inadequate, and that each party shall therefore be entitled to seek, from a court of competent jurisdiction, timely injunctive relief to protect such party’s rights under this Agreement in addition to any and all remedies available at law.
Disclaimer of Warranties/Limitation on Damages
LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW REGARDING THE LICENSED PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING IN LAW FROM A COURSE OF DEALING OR USAGE OR TRADE, AND INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE LICENSED PRODUCTS AND ANY RELATED DOCUMENTATION ARE PROVIDED ON AN “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, AND YOUR USE OF THE LICENSED PRODUCTS THEREBY IS AT YOUR SOLE RISK AND DISCRETION. FURTHER, LICENSOR MAKES NO WARRANTY THAT (I) THE LICENSED PRODUCTS WILL MEET YOUR REQUIREMENTS; (II) THE LICENSED PRODUCTS WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, OR ERROR-FREE THAT DEFECTS WILL BE CORRECTED OR THE LICENSED PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (III) THE QUALITY OF THE LICENSED PRODUCTS OR ANY SERVICES, INFORMATION, OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE LICENSED PRODUCTS WILL MEET YOUR EXPECTATIONS; OR (IV) THE LICENSED PRODUCTS DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY. LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE LICENSED PRODUCTS, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
IN NO EVENT SHALL LICENSOR OR ANY OF ITS AFFILIATES, SUBSIDIARIES, LICENSORS OR ASSIGNS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS OR DIRECTORS BE LIABLE TO YOU OR ANY THIRD PERSON FOR (A) ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE LICENSED PRODUCTS, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LICENSOR WAS AWARE OF OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE LICENSED PRODUCTS; OR (B) ANY MONETARY DAMAGES IN EXCESS OF $100.
Export Controls
The Licensed Products may be subject to US export control laws, including but not limited to the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Licensed Products to, or make the Licensed Products accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Licensed Products available outside the US.
Termination
This Agreement is in effect for as long as you have a valid license to the Licensed Products under the terms and conditions of the Heartland Agreement, unless sooner terminated as permitted in this Agreement. Your rights under this Agreement will terminate immediately without notice to you if you fail to comply with any term or condition of this Agreement, if you are no longer employed by or contracted to work on behalf of your organization or for any other valid reason, as determined by Licensor. Licensor will determine your compliance with this Agreement in its sole discretion and its decision shall be final and binding and not subject to challenge or appeal. You understand and agree that Licensor shall have no liability to you or any other person for any termination of this Agreement. Further, unless earlier terminated as provided herein, this Agreement will terminate at such time as the Heartland Agreement terminates.
Indemnification of Licensor
You agree to indemnify, hold harmless and defend Licensor and its licensors, parent, subsidiaries and affiliates, and all officers, directors, and employees thereof, and anyone acting on Licensor’s behalf (collectively, the “Indemnified Parties”) from and against any and all claims, alleged claims, demands, causes of action, judgments, damages, losses, liabilities, and all costs and expenses of any kind arising from or connected with (i) your use of the Licensed Products; (ii) any third party, including without limitation, any Integrator, that you authorize to access, interface with or otherwise engage with the Licensed Products or the Licensee Data; (iii) any breach or alleged breach of your representations, warranties, obligations or agreements hereunder; and (iv) any violation of any laws or regulations or the rights of any third party by you or by any person or entity that you allow to use the Licensed Products.
Severability
If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from this Agreement while not affecting the validity or enforceability of the remaining provisions, which shall remain in full force and effect.
No Waiver
No failure to exercise and no delay in exercising, on the part of either party, any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege hereunder preclude further exercise of the same right or the exercise of any other right hereunder.
Force Majeure
Neither party shall be deemed in default or otherwise liable under this Agreement because of its inability to perform its obligations (other than a party’s payment obligations) by reason of fire, earthquake, flood, substantial snowstorm, epidemic, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, unavailability of materials, carriers or communications facilities, act of God, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order, or any cause beyond its control.
Changes. Licensor may modify this Agreement, in whole or in part, at any time. In the event such changes are deemed material, Licensor will post such changes on its website and may make the revised Agreement available to you via download through the applicable app store. You agree to check Licensor’s web site periodically to review any changes to this Agreement. By continuing to use the Licensed Products and/or clicking your assent to the modified Agreement, you will be deemed to have read, understood, and unconditionally agreed to comply with the terms and conditions of the Agreement, as modified.
General Provisions
Licensee may not assign this Agreement without Licensor’s prior written consent. This Agreement and the Heartland Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersede all prior or contemporaneous written or oral agreements between the parties with respect to the Licensed Products or any other subject matter covered by this Agreement. This Agreement is intended for the sole and exclusive benefit of the parties hereto, is not intended to benefit any third party, and only the parties may enforce this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without Licensor’s written agreement. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision thereof. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.
Terms Required by Apple, Inc.
If your device is an iPad, iPhone, or iPod Touch, the following additional terms apply:
a) Apple, the Apple logo, iPad and iPhone are trademarks of Apple, Inc. (“Apple”), registered in the U.S. and other countries. iTunes and the Apple App Store are service marks of Apple.
b) This Agreement is between you and Licensor only, and not with Apple. Licensor, and not Apple, is solely responsible for the Licensed Products.
c) Apple has no obligation at all to provide any support or maintenance services in relation to the Licensed Products. If you have any maintenance or support questions in relation to the Application, please contact Licensor, not Apple, using the contact details at the end of this section.
d) Except as otherwise expressly set out in these terms, any claims relating to the possession or use of the Licensed Product are between you and Licensor (and not between you, or anyone else, and Apple).
e) iTunes and the Apple App Store are owned and operated by Apple. Your use of the Apple App Store is governed by a legal agreement between you and Apple. You acknowledge that you had the opportunity to review Apple’s App Store Terms of Service and agreed to be bound by them when you accessed and downloaded the app via the Apple App Store.
f) To the maximum extent permitted by applicable law, Apple shall have no warranty obligation or liability whatsoever with respect to the Application, including without limitation in relation to the sale, distribution or use of the Application, or the performance or non-performance of the Application. In the event that the Licensed Products fail to comply with any warranty set forth in this Agreement, you may notify Apple, and Apple will refund the purchase price for the Licensed Products to you.
g) Apple shall not be responsible for addressing any claims by you or any third party relating to the Licensed products or the possession and/or use of the Licensed Products, including but not limited to (i) product liability claims, (ii) any claim that the Licensed Products fail to conform to any applicable legal or regulatory requirement, or (iii) claims arising under consumer protection or similar legislation.
h) Apple shall not be responsible for the investigation, defense, settlement or discharge of any claim that the Licensed Products or your possession and use of the Licensed Products infringes a third party’s intellectual property rights.
i) You represent and warrant that (i) the Licensed Products will not be downloaded or used in, or transported to, a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a ‘terrorist-supporting’ country, and (ii) neither you or any use designated by you are listed on any U.S. Government list of prohibited or restricted parties.
j) Support requests, as well as questions, complaints or claims regarding the Licensed Products, may be directed to Licensor at: Heartland, 3550 Lenox Road NE, Suite 3000, Atlanta, GA 30326; 1-855-936-4251; help@e-hps.com.
k) Notwithstanding anything to the contrary in any other agreement between the parties, Apple and its subsidiaries are third-party beneficiaries of this Agreement, and have the right (and shall be deemed to have accepted the right) to enforce this Agreement against you.
Terms Required by Google, Inc.
If your device is an Android-powered device, the following additional terms apply:
a) Android™ is a trademark of Google Inc. (“Google”). Use of this trademark is subject to Google Permissions.
b) This Agreement is between you and Licensor only, and not with Google. Licensor, and not Google, is solely responsible for the Licensed Products.
c) Google has no obligation at all to provide any support or maintenance services in relation to the Licensed Products. If you have any maintenance or support questions in relation to the Application, please contact Licensor, not Google, using the contact details at the end of this section.
d) Except as otherwise expressly set out in these terms, any claims relating to the possession or use of the Licensed Product are between you and Licensor (and not between you, or anyone else, and Google).
e) The Google Play Store is owned and operated by Google Inc. Your use of the Google Play Store is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/TOS) and the Google Play Store Terms of Service (found at http://www.google.com/mobile/android/market-tos.html) and together with the Google Terms of Service called the “Terms”). In addition, your use of the Google Play Store is subject to the Google Play Store Business and Program Policies (found at http://www.google.com/intl/en_us/mobile/android/market-policies.html). The Google Play Store Terms of Service, Google Play Store Business and Program Policies, and Google Terms of Service shall take precedence in that order in the event of a conflict between them, to the extent of such conflict. You acknowledge that you had the opportunity to review the Terms and agreed to be bound by them when you accessed and downloaded the app via the Google Play Store.
f) To the maximum extent permitted by applicable law, Google shall have no warranty obligation or liability whatsoever with respect to the Licensed Products, including without limitation in relation to the sale, distribution or use of the Licensed Products, or the performance or non-performance of the Licensed Products. In the event that the Licensed Products fail to comply with any warranty set forth in this Agreement, you may notify Google, and Google will refund the purchase price for the Licensed Products to you.
g) Google shall not be responsible for addressing any claim by you or any third party relating to the Licensed Products or the possession and/or use of the Licensed Products, including but not limited to (i) product liability claims, (ii) any claim that the Licensed Products fail to conform to any applicable legal or regulatory requirement, or (iii) claims arising under consumer protection or similar legislation.
h) Google shall not be responsible for the investigation, defense, settlement or discharge of any claim that the Licensed Products or your possession and use of the Licensed Products infringes a third party’s intellectual property rights.
i) You represent and warrant that (i) the Licensed Products will not be downloaded or used in, or transported to, a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a ‘terrorist-supporting’ country, and (ii) neither you or any user designated by you is listed on any U.S. Government list of prohibited or restricted parties.
j) Support requests, as well as questions, complaints or claims regarding the Licensed Products, may be directed to Licensor at: Heartland, 3550 Lenox Road NE, Suite 3000, Atlanta, GA 30326; 1-855-936-4251; help@e-hps.com.
k) Notwithstanding anything to the contrary in any other agreement between the parties, Google and its subsidiaries are third-party beneficiaries of this Agreement and have the right (and shall be deemed to have accepted the right) to enforce this Agreement against you.
l) In order to continually innovate and improve the Google Play Store, Google may collect certain usage statistics from the Market and Supported Android Devices, including but not limited to, information on how the Google Play Store and Supported Android Devices are being used. The data collected is examined in the aggregate to improve the Google Play Store for users and developers and is maintained in accordance with Google's Privacy Policy. To ensure the improvement of the Licensed Products, limited aggregate data may be available to Licensor upon its written request.