This License Agreement (the “Agreement”) is a legal agreement between you, either an individual or a single legal entity (“Licensee”), and Electronic Payments Inc. (“EPI”) that governs Licensee’s acquisition and use of the eGiftSolutions software and any accompanying documentation (the “Software”). This agreement is not between Clover and you. Clover and its affiliates do not have any responsibility or liability to Licensee in any way with respect to your use of the Software.
Licensee must accept the terms of this Agreement before installing and otherwise using the Software. By selecting the “Accept” option and downloading the software, or by using, copying and installing the software product, you are indicating acceptance of the terms of this Agreement. If Licensee does not agree to the terms of the Agreement, do not check the radio button below and do not use the Software. If Licensee does not agree to the terms of the Agreement, Licensee is not granted any rights whatsoever in the Software and must permanently delete all copies of the Software in Licensee’s possession.
- License Grant. Subject to the terms of this Agreement, EPI grants to Licensee a personal, non-exclusive, non-transferable license, without the right to sublicense, to install and execute one (1) copy of the Software, in accordance with its documentation, on up to one (1) computer that are utilized to access Licensee’s merchant account(s). Licensee may download, install and use the Software however a merchant credit card processing account from EPI is required to process credit and debit card transactions through the Software. The Software is provided to be used free of charge on any computer in conjunction with the use of a merchant account provided by EPI. Licensee’s use of the Software will be subject to payment of all applicable fees as described in Section 4 below. Licensee may download, install and utilize at no charge the Software for their personal or business use, as set forth on the eGiftSolutions website at www.eGiftSolutions.com or at a successor site.
- Billing and Payments. There are costs involved in gift card production and are non-refundable, generally, unless a defect in manufacturing has occurred at which time EPI will elect to reprint the cards or provide a refund. Prior to any card order, Licensee shall sign off on the proof approval and agree to the costs for production. There is no charge to download and install the eGiftSolutions app. Clover, on EPI’s behalf, may refund the full purchase or subscription price of an app to you if: (i) an app does not function properly; or (ii) a subscriber requests a refund from Clover, as your agent, within a reasonable time period. Auto-recurring monthly subscriptions are not offered for the eGiftSolutions app. You may cease using the service(s) at any time in your sole discretion. EPI shall be under no obligation to provide gift card balances and corresponding card numbers.
- Termination of eGiftSolutions Support and Services. EPI may remove the eGiftSolutions app and cease providing services due to: 1) an allegation or actual infringement of any intellectual property right or right of publicity or privacy of any third party, (2) an allegation or actual defamation, (3) an allegation or determination that an app does not comply with applicable law, (4) EPI ceasing to do business, or (5) EPI filing a petition in bankruptcy, dissolving or otherwise failing or unable to pay our debts as they become due. EPI shall provide reasonable advance notice prior to ceasing Support and providing Services under for reasons contemplated by this Section 3.
- Removal from App Market by Clover. An app may be removed at any time from the App Market if it is determined that the app: (i) may infringe or otherwise violate the intellectual property rights or any other rights of any third party; (ii) violates any applicable law, regulation, card association rule, or is subject to an injunction; (iii) violates the Clover App Market Developer Program Policies; (iv) is being distributed in a manner that is in breach of the Clover Developer Terms; (v) may create liability for Clover; or (vi) may contain a virus, malware or spyware, or may have an adverse impact on Clover’s systems.
- Restrictions on Use. Except as expressly permitted in Section 1 (License Grant) (if at all), Licensee may not (a) copy, translate, modify, create derivative works of, or otherwise use the Software or any part thereof, (b) distribute, sell, assign, pledge, sublicense, lease, loan, use for service bureau purposes, rent, or otherwise transfer the Software or any part thereof in any form to another person, (c) remove from the Software, or alter, any of the trademarks, trade names, logos, patent or copyright notices or other proprietary notices or markings, or add any other notices or markings to the Software. EPI does not grant to Licensee any express or implied licenses or rights to any enabling technologies or systems that may be necessary to use the Software.
- Ownership. The Software is licensed, not sold, and Licensee agrees that the Software and all intellectual property and proprietary rights therein are owned by EPI. EPI reserves title and all right and interests in and to the Software not expressly granted to Licensee (“License Grant”), including without limitation all patent rights, copyrights, trademarks, trade names, trade secrets and other intellectual property and proprietary rights. There are no implied licenses under this Agreement, and all rights not expressly granted are reserved by EPI.
- Registration. If Licensee wishes to use the eGiftSolutions Software, Licensee agrees to obtain a registered license from EPI as well as a merchant account and pay all applicable fees. Unless Licensee and EPI have entered into a separate agreement, fees shall be the then current fees set forth on the eGiftSolutions website at www.egiftsolutions.com, or at a successor site. Fees will also be fees owed for merchant processing services as outlined in the Program Guide and Merchant Processing Application. If the Licensee closes their merchant processing account with EPI, they may not continue to use the Software and must remove it from any computer it is installed on unless otherwise authorized by EPI.
- No Warranties. THE SOFTWARE IS PROVIDED AND LICENSED TO LICENSEE “AS IS”. LICENSEE assumes the entire risk as to, and acknowledges that LICENSEE relies solely at LICENSEE’S own risk on, results and performance arising out of the use of the Software. Should the Software prove to have defects in any way, LICENSEE assumes the entire cost of all servicing, repair or correction arising in connection with such defects. LICENSEE is responsible for the incorrect processing of credit or debit cards in whole or in part, as single transactions or as batches of transactions. EPI shall have no responsibility to pay for processing fees, chargeback fees, adjustment fees, or to reimburse LICENSEE for missing transactions or funds otherwise not deposited.
EPI DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OF THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, EPI SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT THE SOFTWARE, EPI’S EFFORTS, OR ANY SYSTEM WITH WHICH LICENSEE WILL USE THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, FULFILL ANY OF LICENSEE’S PARTICULAR PURPOSES OR NEEDS, OR THAT THE OPERATION OF THE SOFTWARE OR WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ASSUMES THE RESPONSIBILITY FOR THE SELECTION OF LICENSEE’S REQUIREMENTS, SOFTWARE, AND HARDWARE TO ACHIEVE LICENSEE’S INTENDED RESULTS. Some jurisdictions do not allow the disclaimer of implied warranties, so the above disclaimer may not apply to Licensee, in which case the duration of any such implied warranties is limited to thirty (30) days from the date the Software is first downloaded by Licensee. In case of breach of such implied warranties, EPI’s sole and exclusive obligation and liability and Licensee’s sole and exclusive remedy will be, at EPI’s sole discretion, to (i) repair, correct, or work around any defect; (ii) provide a replacement copy of the Software; or (iii) terminate this Agreement and issue Licensee a refund of any fees that Licensee may have paid EPI for the Software (if any).
- Limitation of Liability. EPI SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY INNACURACY OF THE EGIFTSOLUTIONS SOFTWARE OR TRANSACTION PROCESSING. THIS INCLUDES, BUT IS NOT LIMITED TO, THE LOSS OF TRANSACTIONS OR BATCHES, RESULTING IN THE REAL LOSS OF MONEY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL EPI BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE SOFTWARE. EPI’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY LICENSEE HEREUNDER IN THE ONE MONTH PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF COMPANY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY.
- EPI reserves the right to make changes to this Agreement at any time by publishing a revised version of these terms on the App Market. The revised version of the terms will take effect from the time at which it is first published. You will be subject to the Terms in force at the time that you use the App Market. You are advised to check the Terms from time to time for any updates or changes that may affect you the end user.
- Miscellaneous. Nothing contained herein will be construed to create any agency, employment, partnership, principal-agent relationship, or other form of joint enterprise between the parties. No waiver or modification of the Agreement will be valid unless signed by each party. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof. The headings in this Agreement do not affect its interpretation. Licensee may not assign or transfer any of Licensee’s rights or obligations under this Agreement to a third party without the prior written consent of EPI. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning. EPI may assign this Agreement without consent to any third party. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of this Agreement will remain in full force and effect. Notices to EPI must be sent to the following address, and will be deemed effective three (3) days after certified mailing, return receipt requested: Electronic Payments, 1161 Scott Ave, Calverton, NY 11933; notices to Licensee may be sent to Licensee’s e-mail address and will be deemed effective upon arrival at Licensee’s e-mail server. This Agreement is governed by the laws of the State of New York without reference to conflict of laws principles that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Suffolk County, New York, and the parties irrevocably consent to the personal and exclusive jurisdiction and venue of these courts. This Agreement is the final, complete, and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written.
- Severability. If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.